*1
“if thе
judgment
a
grant
summary
It is proper
interrogatories
answers to
depositions,
pleadings,
affidavits, if
show
file,
with the
any,
together
admissions on
material fact and
issue as to
genuine
any
is no
that there
as a matter
to a judgment
is entitled
moving party
Catrett,
In Celotex
Corp.
P.
56(c).
Ark. R. Civ.
of law.”
Court
interpreted
(1986),
Supreme
Affirmed.
LUKACH,
John Richard
Jr. v. STATE of Arkansas
CR 91-279
Supreme delivered June Opinion *3 Horton, Larry W. for appellant. Gen., Moll, Asst. Sandy Att’y Bryant, Att’y by:
Winston Gen., for appellee. Richard L. Justice. John Corbin, Appellant,
Donald Lukach, Jr., from of the Hot Cirсuit judgment Spring appeals of his two nieces. The Court him of the convicting rapes were nine charging alleged girls aged informations during and seven at the time the were committed years rapes 14, 1991, After a trial on August jury August month of 1990. was sentenced to two life terms in the Arkansas of Correction. He raises five on arguments appeal. Department All five are without merit. We affirm. arguments OF THE EVIDENCE
SUFFICIENCY brief arguments The last of the five raised is that the trial court errеd in his motion for directed denying We challenge verdict based on insufficient evidence. treat a denial of a motion for directed verdict as a challenge State, 498, sufficiency the evidence. Walker v. 308 Ark. S.W.2d 822 on the in Burks v. holding Based United States, 437 1 (1978), U.S. the double clause jeopardy a second trial when a conviction in a trial was precludes evidence, reversed for lack of we have solely determined that of an to freedom from double preservation appellant’s right a review of jeopardy requires sufficiency the evidence prior to a review of trial errors. Smith (1991); S.W.2d 922 Harris v. *4 Therefore,
334 (1984). we assignment consider last of error, evidence, the challenge to the of the to sufficiency considering his other assignment of trial error. determining
The test for
the
of the evidence
sufficiency
verdict;
is whether there is substantial evidence to
the
support
substantial evidence must be forceful
to
a conclu
enough
compel
sion one
or the other
and
Gillie
way
beyond suspicion
conjecture.
296,
review,
Dr. Greg in Loyd, family practioner testified he that conducted a examination on the physical nine- victim in year-old August the time the alleged information the crime was committed and the time that was living in the same home as thе two victims. Dr. determined that the Loyd nine-year-old girl had a which perforate was not hymen intact. Although he could not determine the cause the three to four millimeter tear in her hymen, he testified that a could penis have caused it.
Darrell Pilcher testified he that lived in the same victims, house with the two appellant, grandmother. their He testified that one night the victim came nine-year-old running him when was he on the asleep couch and told him touched her. Pilcher went into her bedroom found appellant in her bed. lying
The seven-year-old victim testified when lived that she in her granny’s house with Johnny, Uncle he hurt her than more once. She that explained night “one he took pants his off and he put grease some on me.” She stated that he on her put grease between her private he legs that in her put private private.
We have held times many uncorroborated aof victim that the testimony defendant committed the is See, sufficient to uphold that defendant’s for conviction rape. e.g., Curtis v. 47 (1990). Such a is based holding on the fact part determining *5 of the witnesses is credibility a determination that lies within the State, 486, province Urquhart v. 273 jury. Ark. 621 124 or not to decision whether jury’s is the (1981). 218 It
S.W.2d is Id. necessary. no corroboration believe the victim committed the that victims testified Both testimonies of the victims’ credibility judged The jury rapes. is substantial and The evidеnce verdict. guilty and returned a the verdict. sufficient to support therefore TO SEVER MOTION his numer- court erred in denying the trial alleges Appellant trial, to sever the motions, during to trial and made both prior ous Rule relies on A.R.Cr.P. both victims. against cases cases to a severance as the two he was entitled 22.2(a) argues of the same or similar were joined solely they were because scheme or He also single plan. and were not of a part character he was denied a 22.2(b)(ii) argues on A.R.Cr.P. Rule relies of each offense. of his or innocence guilt fair determination within or a severance is a matter Granting refusing 490, 720 State, v. 290 Ark. the discretion of the trial court. Fisher necessary held that where the facts (1986). S.W.2d 900 We have in each trial if a the offenses would almost all be required prove and the evidence would be used both granted severance were mind, schemе, there was motive or state of trials to prove plan, v. Henry of discretion in to sever the cases. refusing no abuse 419, denied, 647 S.W.2d cert. U.S. of sexual abuse with We have also held that evidence (1983). motive, than is admissible to show children other the victim intent, 404(b). A.R.E. Rule Morgan or plan pursuant Thus, as the facts these offenses would be both trials necessary required prove be admissible in the girls’ and as each of the testimonies would intent, motive, or trial of the other’s to show rape did not abuse its common scheme or the trial court plan, refusing discretion in to sever the two cases. — OR YOUNGER
MISTRIAL CONTINUANCE VICTIM victim, With of the seven-year-old respect the trial erred in his motion for argues denying court or, alternative, based on mistrial in the motion for continuance *6 failure to with the state’s evidence that comply discovery. was not disclosed to him is a alleges medical examina- tion of the victim and а younger interview of her with a taped social Both worker. the interview and medical examination were Atlanta, conducted in Georgia, August of when the victim went there live with younger her paternal grandmother, Alice Roden. asserts
Appellant although he made a discovery request evidence, of all scientific he first learned this evidence existed when the seven-year-old victim revealed its existence on cross- exаmination. When asked if she had ever been examined aby doctor for her, what she her alleged Uncle did to she Johnny sir. . responded “[y]es, . . When I was in Atlanta.” At the conclusion of the girl’s mistrial, moved for testimony, appellant a severance, and continuance on the basis that the medical evidence could him. Ms. Roden exculpate then testified in an in camera that the hearing seven-year-old girl had been examined aby doctor in Atlanta at the of a request Fulton County, Georgia, social worker because of allegations of sexual abuse against “her younger son.” Ms. Roden also testified that the seven-year-old girl been interviewed on video tape by social worker in Atlanta and that she thought the interview taped was sent to a social worker in Arkansas. argues on appeal knowledge of the existence evidence,
of both pieces the medical examination and the taped interview, were Thus, to the imputed state. when the state did not this supply evidence to appellant pursuant his discovery requests, the state did not with the comply requirements of A.R.Cr.P. Rule 17.3(a) to use due diligence and good faith to obtain and Therefore, with supply appellant this evidence. argues mistrial, he appellant, was entitled to a or at the least a very continuance in order to obtain the evidence in question.
A.R.Cr.P. Rule 17.3 states as follows:
(a) The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession other governmental personnel which would be discovera- ble if in the or possession control of the prosecuting attorney, upon timely request designation of material or information defense counsel. are unsuc- efforts attorney’s
(b) prosecuting If orders to or cessful, issue suitable subpoenas the court shall to defense to be made available material cause such person- or other governmental where the material counsel of the court. subject jurisdiction nel are *7 had no reveals that the prosecutor of the transcript A review the time learned of appellant evidence of this knowledge State, 595, Ark. However, v. 290 relies on Dumond it. appellant State, 286 Ark. 691 (1986), 663 Lewis State, 14 Ark. Aрp. and Dever v. (1985), S.W.2d 864 of this knowledge the (1985), argument for S.W.2d The cases relied on by appellant evidence is state. imputed being to be related to the case directly involved evidence known so agencies to exist in the hands of Arkansas state tried and known That is not could be obtained the by prosecution. that the evidence cases. so in the present hearing the in camera is not
The at testimony presented or the evidеnce that either the medical report taped conclusive exist, and if so that are known to exist actually they by interview is also as to whether or not vague state The any agency. testimony against relate to the case these two of evidence pieces the seven-year-old girl. grandmother’s for the of indicates the medical examination was requested testimony County, and Children Services of Fulton Family Agency by “her аllegations against based on of sexual abuse Georgia, Nowhere in the can it be confirmed that transcript son.” younger true, however, son” is the in this case. It is “her younger cross-examination, the victim answered seven-year-old that on what she when asked if she had seen a doctor for said affirmatively also grandmother’s testimony her Uncle did to her. The Johnny girl indicates that the interview of the could taped seven-year-old grandmother have related to a matter. The testified that custody of whose mother legal seven-year-old girl, she had custody There was no her and taken her back to Arkansas. kidnapped statement, otherwise, Roden or of what the taped clear Ms. interview concerned. remedy
A mistrial is an extreme and drastic
should be avoided
where fundamental fairness of the trial
except
stake;
of
a mistrial is within the
grant
is at
the decision whethеr
discretion of the trial court and will not be reversed on appeal
absent a
that the discretion was abused. Snell v.
showing
503, 721
denied,
(1986),
S.W.2d 628
cert.
CONTINUANCE OLDER VICTIM During a pre-trial evidentiary hearing, the facts following were 23, 1991, revealed. On July one week approximately before appellant’s trial, case was first set for learned appellant that the nine-year-old victim had accused an adult male other than appellant of her. raping Appellant’s information was that the Russellville, accusation was Arkansas, made but after further investigation Dardanelle, discovered the accusation wаs made in Arkansas. Appellant contacted the Hot Spring County Sheriffs office which stated it would obtain the records for but appellant, failed to do so. 12, 1991,
On August trial, two days prior to trial court granted appellant’s for an order to request produce records. The records appellant sought were to provided appellant the Yell by officials County on August 1991. nine-year-old that the confirmed records County Yell
The malе, than other adult an had accused case in this victim sexual any denied The accused in 1988. her of raping appellant, The polygraph examination. during polygraph of the girl abuse answers to questions accused’s that the determined examiner were truthful. victim of the nine-year-old abuse sexual regarding Dr. by was examined girl that the indicated records also The indicated medical report Dr. Hicks’ Hospital. Children’s Hicks at laceration, cut, or intact, without was hymen nine-year-old’s tear. he needed arguing that for a continuance moved
Appellant medical exami- this 1988 concerning testimony expert to procure counsel and allowed a continuance granted trial court nation. The at trial. which was admitted part Hicks’ deposition, take Dr. that because arguing continuance for another moved examining that the exculpatory evidenсe was medical this abuse, was child sexual appellant not an expert was physician of the 1988 an expert’s opinion to obtain entitled to a continuance motion for a denied this second The trial court examination. continuance. examination is that this 1988 medical argument
Appellant’s victim that the nine-year-old because it indicates is exculpatory did against that she allegation made the same had prеviously case, i.e., in my “he put private in the present However, allegation proved in the case that previous private.” a discovery claims the committed prosecution be false. Appellant information until disclose this failing exculpatory violation by two before trial. days claiming defends its conduct state *9 This
an to about the 1988 examination. expert question available is Dr. the who examined Greg Loyd, physician so-сalled expert and testified at trial. The nine-year-old August the victim to Dr. state is correct in out that pointing appellant stipulated However, as an the state the Loyd’s qualifications ignores expert. fact that was the court to as an Dr.Loyd only qualified by testify was a in the field of medicine. Dr. stated he expert family Loyd At no in the it mentioned general practioner. point was transcript that Dr. was an in child sexual abuse. Loyd expert mentioned,
As claims the 1988 medical examina- appellant
129 to his case it was An excuplatory. tion was material because the is is not to determine that 198 8 examination not expert needed Hicks, Dr. the physician because the who exculpatory performed examination, finding 1988 of an intact explained hymen or an vagina stated that of a child’s adult by digit penetration Thus, cause 1988 might vaginal tearing. not this medical penis not necessarily examination does exculpate appellant. is burden to show there has been appellant’s It that an abuse of discretion in the continuance. Cotton v. denying 235 (1979). was Appellant Dr. granted testimony. one continuance to obtain Hick’s Based on that the trial have the court could concluded testimony, examination medical was not and therefore exculpatory not relevant and not material to case. There is no error in the denial of a motion for to continuance obtain evidence that is 433, 533 not not material and relevant. Ark. Worley S.W.2d 502 (1976).
IMPEACHMENT OF OLDER VICTIM to the victim Appellant attempted recall nine-year-old witness, stand as his first trial but the court would not allow this. #3, then proffered Defendant’s Exhibit which is a of a Dardanelle transcript Police Officer’s interview of the nine- year-old victim the concerning allegation a man other than He the appellant. argued calling her to purpose the stand be would to establish she had made prior allega- tions of sexual abuse were which not supported by medical evidence and attack to her credibility by she made showing statements inconsistent with the medical which testimony was already admitted the case. On appeal, claims the trial court erred in not him to attack allowing the of the credibility nine-year-old girl violated his thereby confront right witnesses.
We cannot court say denying trial erred in appel First, lant’s recall request victim. as she nine-year-old state, taken stand already as a witness for the appellant had ample confront She Dr. opportunity her. testified after Hicks’ deposition Second, admission of his 1988 report. medical the proffer made nothing was more than the transcript of the interview. There proffer was no of the exact alleged *10 statements, intended to be nor what was or
inconsistent statemеnt or testified to. asked 11(f), R. and with Ark. Ct. Sup.
In accordance We adverse to have rulings appellant. have abstracted all appellee was no and determined there rulings prejudice these reviewed appellant.
Affirmed. Dudley JJ.,
Holt, C.J.,
dissent.
Newbern,
and
Justice,
dissenting.
Chief
would make
Holt,
Jr.,
I
Jack
and
it for
reversing
remanding
of this
by
short shrift
appeal
trial,
Granted,
to a
but
a defendant is not entitled
perfect
retrial.
he
to a fair trial. See Hoback
is entitled
Lukach 8, 1991, him were against trial court on cases July set for trial on 1991. immediately July client, filed In effort to counsel fully represent an discovery, motions for a bill of particulars, appropriate to, not limited information or material including, but inspection or control which knowledge, within the prosecutor’s possession, guilt charged. would tend to of Lukach as to the offense negate 21, 1991, Lukach’s counsel learned onе of the complain On July man Counsel informed ants had accused another 1988. turn, who, of this information referred counsel the prosecutor in gaining to the Hot Sheriff’s Officefor assistance Spring County and, result, as a filed information. Counsel met with little success motion with the court to about information compel discovery trial, Two the court concerning days prior rape. trial, even of entered its “Order to Produce Records.”On the to сounsel. information was furnished 17.3 states as follows: A.R.Cr.P. Rule (a) diligent, shall use prosecuting attorney in the good faith efforts to obtain material possession be other which would discovera- governmental personnel ble if in the or control of the prosecuting possession of material attorney, timely designation upon request or information defense counsel. *11 efforts are unsuc-
(b) If the prosecuting attorney’s cessful, to shall suitable or orders the court issue subpoenas cause such material to be made available to defense or other governmental counsel where material person- are of the court. subject jurisdiction nel It is obvious to me that the violated prosecuting attorney to Rule 17.3 to the extent that it was for trial court necessary order on eve of compel issue its to trial. is a
The of this rule and to purpose discovery provide defеnse can counsel obtain sufficient informa- procedure whereby and, tion in order to for investigate trial properly prepare effective assistance and to particular, provide representation his at itself. client the trial Whether or not there was a formal showing specific Lukach the State’s prejudice by failure is, is of no moment. The ultimate did comply question counsel receive the time requested information sufficient to effectively investigate and for trial? is properly prepare answer simple and, reason, “no” for this is prejudice apparent. Eighty percent a trial is and the other is preparation presentation. twenty
The State’s indifference and lack of faith in good furnishing counsel, information to and the trial court’s failure to grant sufficient continuances to permit counsel to properly prepare case, after all receiving information in his for requested motion discovery has compel, denied the defendant fair trial. I dissent. respectfully
Dudley JJ., Newbern, join in the dissent.