*1
203
2, 1981,
lawsuit on
his
April
answer.” While
filing
there
no
merit in the
we do
reach
apparent
argument,
it because was not raised
below.
have held
times
“We
many
that the trial court must be
presented with
constitutional
issue before we will consider
appeal.”
it on
Wilson v.
Wilson,
Ark.
but
485,
Affirmed. Earl
Chester
RHODES v. STATE Arkansas
CR 81-99
Supreme 24, Opinion delivered May [Rehearing denied 1982.*] June C.J., grant rehearing would to affirm on merits. Hick- *Adkisson, JJ., grant rehearing. would man Hays, *2 Hartman, Bost, L. Jr., Terry L. William Joan Foreman, for appellant. Burns, Clark, Gen., Alice Ann Asst. Atty. by: Steve Atty. Gen., for appellee. Dudley, Earl Robert H. Chester Appellant Justice. murder with charged Carr were capital Rhodes Juanita 21,1980 Kelley Roland April robbery
in the murder in violation of Ark. Stat. Ann. 41-1501 (Repl. Fayetteville murder, first Carr 1977). pleaded guilty degree Juanita testified year against received sentence and twenty-five the second first ended in a mistrial but trial appellant. *3 with of the death trial resulted in a conviction imposition penalty. Carr, 17-year-old
The evidence established that then a Roland house in afternoon Kelley’s went to late prostitute, and she in sexual relations. did not engaged Kelley pay collect from evening returned with later that appellant walking saw a toward couple Several witnesses black Kelley. of by way house and later saw black leave Kelley couple the both black. back Carr are porch. appellant the Juanita witness, Beverly appellant identified Kelley, positively One of man two them as the she saw with Carr as the Juanita from, toward, the house. away and later victim’s walked house, left he was found after the the Shortly couple Kelley beaten to The victim’s wallet and approximately $65 death. in a lot where The wallet was later found were missing. testified she had thrown it. Carr Carr stated Juanita Juanita a board the to death with that had beaten victim appellant had thrown it. was where she stated appellant found for a new remand the case We reverse the conviction and those of error. That prejudicial point trial because which, error, the trial court are to confront likely though discussed in this retrial are opinion. upon Carr, felony in the accomplice capital Juanita murder, the appel- link between was the direct evidentiary lant, was key credibility the murder and the Her robbery. case that appellant’s state’s case and was crucial to the he be allowed to conduct as full an of the impeachment The trial witness’ the rules evidence allow. credibility the state’s threshold motion and ruled that the granted court could not cross-examine Carr about appellant Juanita The incidents court ruled previous shoplifting. could about convictions appellant only inquire felony within the ten asserted past years. appellant’s attorney good his faith basis for and made his asking question “she has ... we know she has proffer stating pursued a course of conduct over six . . . pursued years involving activities, thefts and devious and the her evaluating be should made aware that she is a devious credibility type contends that the trial court erred in person.” Appellant his improperly limiting cross-examination under Unif. Rules of Evid. 608 (b), Ark. Stat. Ann. (Repl. 28-1001 Because of our case 1979). prior law we and reverse. agree (b) Rule 608 that provides “[sjpecific instances conduct of a witness ... if of truthfulness probative or untruthfulness” into on cross-examination may inquired in the discretion the trial court. instance of Here the conduct to be In sought inquired into was shoplifting. State, Ark. (1979), we S.W.2d cross-examiner, held that a to 608 ask a pursuant (b), may if witness about bad acts has prior bad conduct prior bearing the witness’ character for We stated dishonesty. *4 that 608 (b) allowed cross-examination about bad acts prior involving theft: murder,
For or do not example, manslaughter assault se per breaking relate to and dishonesty. Burglary would not be such unless the entering misconduct crime involved the believe element theft. We that theft, Code, it is defined in as the Arkansas Criminal involves dishonesty. is a form of theft and our
Shoplifting language according the should have Gustafson, supra, cross-examination reveals transcript been allowed. Careful examination of the trial our that relied appellant’s attorney upon credi- in the of his Carr’s ruling preparation case. Juanita the ruling was issue and under our bility key prior should have heard cross-examination on this issue. Because we cannot state that the did not suffer appellant prejudice a result of the we ruling must reverse.
We have devoted much of our time in conference the of Rules interpretation (b) 609. These rules deal with or attacking the supporting credibility of witness by questioning about specific instances of conduct. The rules bar evidence of instances of specific conduct of a witness for purpose or attacking with two supporting credibility exceptions:
(1) Specific instances are provable when they have resulted in criminal convictions and meet all of set out in requirements Rule 609.
(2) instances in Specific which there has been no criminal conviction into on cross- may inquired witness, examination of the principal or of a witness giving opinion truth- principal’s character for fulness, but the cross-examiner introduce may extrinsic of the if proof witness’ misbehavior witness denies the event. Rule 608 (b).
We are satisfied that our Gustafson, supra, interpretation Rule 608 (b) is too broad and we our prospectively modify of the rule interpretation to limit on cross- inquiry examination to specific instances of misconduct clearly probative of or truthfulness distinguished untruthfulness as from conduct probative McCormick views dishonesty. misconduct, “such as false swearing, swindling” fraud and McCormick, as relevant to truthfulness. Evidence at42 (1954). Weinstein states “Rule 608 authorizes (b)) inquiry instances into of misconduct on specific cross-examination requires but must be of truth- they ‘clearly probative untruthfulness,’” or il- gives following fulness footnote: luminating *5 Fortes,
United States v. Cir. (1st 1980) 619 108 F.2d abuse of discretion in that sale (no finding trial court cocaine was not or untruth- probative truthfulness drug fulness; on whether court reserved decision 208 might probative
transaction ever be considered of a veracity; though questions witness’ disal court responding lowed about witness’ truthfulness in investigators probing surrounding the incident his discharge police probative as a officer could bewell principal truthfulness broad cross-examination of credibility witness should be allowed when of witness issue, presented is central with much other evidence liable character and no error where had been indicating unre witness’ questionable trustworthiness); (4th Whitehead, 1980) United Statesv. 618 523 Cir. F.2d (defendant lawyer testifying iswho in his own behalf may suspension be cross-examined about from bar pursuant 608); Cole, Rule United States v. 617 F.2d (5th 1980) (cross-examination proper 151 Cir. con cerning employer submission to former aof false being work); excuse for Rabinowitz, absent from United States v. (2nd 1978)(evidence 910
578 F.2d Cir. prior sodomy young witness’ acts of on children and consequent psychiatric treatment had too tenuous a bearing credibility judge on for court to find that trial failing admit; had abused discretion in acts had no theory relevance curry to bias that witness needed to years favor DEA since with more than five had elapsed Hastings, charges pending); and no were United States v. (8th 1978)(drug 38 Cir. F.2d
577 transactions truthfulness, citing Treatise); do not relate to States United Crippen, (5th 1978), 535 570 F.2d 837 Cir. cert. denied, (1980) (inquiry 100 Ct. S. as to whether auto-, firm, character witness knew that defendant’s agency, routinely odometers; mobile had turned back citing Treatise); Young, 799, United States v. F.2d (8th 1977), denied, 1079, 98 Cir. cert. S. U.S. Ct. 1273, (1978) (trial properly 55 L. Ed. 2d 786 court impeach prosecution refused to allow defendant to by cross-examining concerning alleged witness her her pay $10,000 killed; offer to her have former husband proposed question veracity was not relevant to honesty citing highly prejudicial, and would have been Treatise); McClintic, United States v. F.2d (8th 1978) (cross-examination 690-691 tempted Cir. about at proper); Baker,
swindle
Lewis v.
526F.2d
*6
(2d
1975)(in
injuries allegedly
Cir.
suit to recover for
employ,
properly
incurred while in railroad’s
court
employment application
plaintiff
admitted
on which
falsely
psychiatric
stated he
had
received
treatment
past
years;
directly
within
five
evidence
relevant to
party’s capacity
truth-telling, citing
608);
for
Rule
Byrne,
F.Supp.
(E.D.
147,
United States v.
1976),
Pa.
(3d
1977),
modified,
Weinstein, Evidence 608§ [05] 608-32. p. Weinstein also at states 608-34: — (b) Since Rule 608 is restrictive intended be and was amended to ensure be that it would re- — strictively interpreted by inquiry the trial courts specific cross-examination be should limited to these agreed generally modes are conduct which indi- cate lack truthfulness. The rule should not be questions broadened to allow about behavior which rights disregard indicates “a for the of others which might reasonably expected express giving be itself in testimony advantage false whenever would approach paves way of the witness.” Such an to an exception which will swallow the rule. It a small but step hypothesis people from there to the that all bad are liars, an unverifiable which runs counter to conclusion everyone particular doctrine that innocent of charged proven guilty. crime until us, Thus, in set facts the future with the same before Ortega, we would hold as stated in United States 561F.2d (9th 1977) respect an for Cir. that while absence of rights property trait, it does not of others an undesirable truthfulness, directly impairment indicate the trait of acts on specific not be allowed would cross-examination no conviction. for there was of shoplifting are modification our prospective reasons for policy *7 of conviction the a defendant stands possibility (1) threefold: no which acts have for but unrelated unsavory reputation by of and 609 Rules 608 a basic aim veracity, (2) on bearing real Our to take the stand. defendant inducements to a is to offer we (3) this interpretation objective, thwarts the Uniform Rules of maintain an interpretation desire to states well as with with other reasonably consistent that is has other jurisdiction Rules of No the Federal Evidence. to or Federal Rules allow the Uniform Rules interpreted shoplifting. acts of specific cross-examination is to commence of rule this prospective The application becomes opinion had on or the date this after with trials However, this apply will ruling the prospective final. the is of case that evidence because it now the law the case admissible. evi- corroborating the state’s contends that
Appellant Carr, is dence, accomplice from that of independent Juanita the case should as a matter of law and therefore insufficient tes- state relies on and dismissed. the be reversed Where conviction, that from accomplice support timony evidence which must be corroborated other testimony by of the connect with the commission the accused tends It is un- 1977). (Repl. Ark. Stat. Ann. offense. 43-2116 to sustain the that the evidence be sufficient necessary must, from of independent but the evidence conviction the to connect degree tend to a substantial accomplice, the State, crime. King the commission of the defendant with 509, the This court reviews Ark. 494 (1973). 476 S.W.2d 254 of the the the test whether verdict sufficiency by evidence evidence, means substantial guilt supported by its verdict without the could have reached jury whether State, Cassell v. 273 speculation conjecture. resort to 59, circumstantial 485 Where (1981). Ark. 616 S.W.2d utilized, evidence can facets of the evidence is all to present a chain sufficient considered to constitute adequacy as to the by for the resolution question 211 301, 534 State, corroboration. Klimas v. Ark. S.W.2d 202, cert. den. U.S. 846 The court (1976). does not look to see whether every other reasonable hypothesis but that guilt State, has been excluded. Cassell v. supra.
On evidence, review of appellate sufficiency to ascertain necessary that evidence only favorable to the appellee likewise permissible consider the testimony that tends to support State, verdict of guilt. Chaviers v. Ark. S.W.2d evidence, when viewed in the light most favorable to appellee, constituted a chain sufficient to corroborate the accomplice’s Carol testimony. Fortner and Carl Matthew testified that they met Carr and at appellant Jenkins Juanita the time and place stated Carr. Kelley testified that *8 Julia she a saw black in couple go the back door the victim’s house and come out running minutes twenty later. Beverly Kelley identified the as the man who appellant was with Carr going toward and from away the victim’s Juanita house. This amounts to substantial evidence to corroborate the testimony decline, accomplice Carr we Juanita law, a matter of to reverse and dismiss on this point.
The same to be photographs are a likely introduced at new trial. findWe no error in their admission for they depict nature, extent and location of the wounds and are intent, relevant issue of state of mind and cor- State, roboration of the manner of Linder beating. v. 273 470, Ark. 620 944 S.W.2d The has Attorney General filed a motion for an award costs pursuant to Rule 9 Ark. (e) (1). Stat. Ann. Vol. 3A 1979). Our (Repl. rule authorizes reimbursement to an but we appellee order such allowances only where there has been a clear-cut and demonstrable failure appellant abstract a properly matters to fair and full consideration Industries, issues raised on direct v. Arkota Inc. appeal. Naekel, 173, Ark. 274 194 (1981). 623 S.W.2d
There was such a clear in this failure case and the state is awarded attorney’s fees in the amount of plus printing $550
212 of the abstract. for preparation supplemental costs for number of issues not address the other We do made, other timely reasons. Some motions were made, is no on other there points was not objection points for time here the first because the is made argument record the case remanded. of the issues are moot because and some Reversed remanded. Hays, dissent. JJ.,
Hickman Hickman, in dissenting part. Darrell Justice, in its the defendant was concedes that majority opinion main witness about her to cross-examine the State’s entitled thefts of six period misconduct which involved over past do nature the activity We not know the exact years. unless there was the trial concluded that judge because could not be questioned a conviction witness actually 28-1001, course, Rule misconduct. Ark. Stat. Ann. about Of such under 1979) questions authorizes (b) (Repl. clearly some circumstances. (b) we first en banc
When considered Rule State, (1979), Ark. we S.W.2d of a the rule impeachment recognized permitting That been restricted. prior witness for misconduct had must or untruthfulness. misconduct relate truthfulness *9 theft, that the Arkansas Crim- by We concluded as defined Code, that in our judgment inal involved dishonesty EVIDENCE, on related We relied WEINSTEIN’S veracity. 608 [5] (1981), which related in detail the various authorities of dishonest that had also concluded various similar types acts had on That our We bearing veracity. prerogative. was State, Divanovich confirmed in Ark. Gustafson 607 S.W.2d with dissatisfaction majority opinion expresses it sua in
our conclusion and are overruling Gustafson holding that If I it are sponte prospectively. they understand honesty of has no trait theft on the character bearing or not witness may impeach such misconduct be used defendant. The states: opinion
Thus, us, in the future with the same set facts before we would hold that while an absence of for the respect trait, rights of others an undesirable it property does directly indicate an of the trait of impairment truthfulness, and cross-examination would not be allowed on acts of specific for which there shoplifting was no conviction. is, course,
There no such crime as in "shoplifting” Arkansas. That a nice word for a simply who steals person store, from a retail as just embezzlement is a word for fancy theft aby white collar worker. Our criminal code simply lumps all thefts together, categorizing thefts the amount by stolen, obtained, itway was the kind of perhaps See property taken. Ark. Stat. Ann. (Repl. 1977). 41-2203 The distinction between the lies categories in the punish- ment.
The majority justifies its decision on the basis that no other jurisdiction has made such an interpretation Rule (b) like ours in To buttress the statement the Gustafson. majority opinion quotes two from WEIN- parts pages STEIN’S EVIDENCE par. [5] (1981). The most lengthy is from quote a footnote which is not illuminating, at all claimed, because is not inconsistent with any the decisions cited the footnote.
The conclusory from quote WEINSTEIN’S EVIDENCE reads: —
Since Rule 608 (b) intended be restrictive and was amended to ensure be re- would — strictively interpreted trial courts inquiry cross-examination should be specific limited to these modes of conduct which are to indi- generally agreed cate lack of truthfulness. The not be rule should broadened to allow behavior which questions about *10 disregard indicates ‘a for the of others which rights might be to in reasonably expected giving itself express advantage be to the whenever would testimony
false an way of the witness.’ Such an approach paves is but small which will swallow the rule. It a exception are that all bad people from there to hypothesis step liars, which runs counter to unverifiable conclusion an is of the particular the doctrine that innocent everyone charged guilty. crime until proven leaves out of its extensive quota- The majority opinion were the statements from WEINSTEIN which tion several The majority quotes basis of our decision Gustafson. where he McCormick’s 1954 work evidence Professor in- to truthfulness would stated that misconduct relevant swearing, swindling.” acts “false fraud and clude such as reads not from quote does WIGMORE majority do indicate an not adultery ‘directly assault “robbery, fraud, while veracity’ forgery of the trait impairment In ON EVIDENCE do.” 3 WIGMORE perjury wrote: original Wigmore text no relevant there is doubt that conduct is Now a violent assault is relevant to indicate character. An character; dishonest fraud relevant a indicate character. have on to discuss two courts goes
Wigmore approaches made to problem: misconduct, indicating
(1) any one is that kind admissible; thus, or an robbery bad character no others may although assault or an used adultery of veracity. of the trait impairment indicates directly and admits (2) logical, other attitude entirely of veracity, as indicates a such misconduct lack only fraud, and the like. perjury forgery, does refer to WEINSTEIN’S opinion The majority list on related offenses which of Dean Ladd’s quote as follows: reads veracity which uttering of offenses including forgery, The group *11 instruments, forged evidence, bribery, suppression of embezzlement, false pretenses, cheating, dis- roughly close a of and type dishonesty character- unreliability istic those lacking veracity.
Nor is the following referred to: paragraph courts, In the federal the most common kinds of convictions would include forgery, income tax frauds fraud, including bribery, bankruptcy making false statements of a of kinds variety such as those in or obtaining guns permits and perjury false swearing. usual variety of state crimes include forgery, false bribery, pretenses, embezzle- cheating, ment, swindling, creditors, false advertising, frauds on issuing bad checks or using another’s credit card without authority, criminal impersonation and un- lawfully concealing a . . will. . WEINSTEIN’S EVI- DENCE par. 608 [5].
Is the majority limiting its holding to the short state- ment from McCORMICK that such misconduct in- only cludes “false fraud swearing, Does swindling”? a swindler tend lie and a thief not tend to is lie? Or majority holding that all thievery not relevant as evidence statement, when it makes the broad “...we would hold that while an absence of for the respect of others is property rights trait, an undesirable it does not directly indicate an impair- truthfulness, ment of the trait of so. Evidently ...” Dean in Ladd Pa. L. 194 (1940), 89 U. Rev. stated better than much I can awhy should know a witness is a thief:
Any classification crimes on the basis their relationship credibility difficult. Personal crimes murder, assault, and mayhem, a vicious show but not disposition one. On the necessarily dishonest other robbery, larceny hand while burglary, showing propensity disregard do falsify, dislose others rights be might reasonably for expected express giving in testimony itself to the false it would whenever the witness. If advantage of the witness had no compunctions against stealing from him away or it taking
another’s property force, he would why see threat or hard to physical or friend for himself advantage hesitate to obtain an Furthermore, such false testimony. a trial by giving acts, convic- single aby criminal evidenced although *12 sanc- tion, breach from such a marked may represent basis of a reasonable tioned conduct that affords It is credibility. quite possible upon future prediction some code other the robber class hold to that with each honor, itself in express that it would unlikely of but it falsify. if to court there were a motive proceedings uttering forged including forgery, group of offenses evidence, instruments, bribery, suppression of false embezzlement, disclose a roughly cheating, pretenses, characteristic dishonest and unreliability type of of with Not witnesses lacking only those would veracity. in giving such tend to be conscience records false free crimes, enlarged these being but testimony, of to might gain class indicate the propensity crimen falsi has been and to falsify. Perjury means thus by false regarded sufficient indication the probability legislatures removing that some in future perjury it as to of the common retained law incompetency in would perjury one case perjury. Whether in perjure that the witness would stronger indication in the the commission of other crimes another than is questionable. crimen falsi group [Emphasis added.] that deliberation we decided in After careful Gustafson a lack relationship between stealing there was a not bear burglary and would veracity. We stated that robbery People v. a theft was See unless involved. veracity A Burdine, 3rd 160 Cal. Rep. 99 Cal. before. or stolen witness a defendant has know if a should to lie. does not believe tend thieves majority Evidently case rests judges know that often lawyers Trial that is a one witness. Sometimes only upon the statement State, Our rules sometimes the defendant. witness for the the relevant or with all judge exist the jury provide defendant decide if a or witness information available to defense tool telling majority denying truth. The attorneys, ultimately us all a valuable denying tool the search for the truth. no good I find cause overrule which is a
definative decision and replace it with a decision that leaves too many questions unanswered. Neither party asked us overrule Gustafson; we have not had the benefit of argument on this issue and I am convinced action is only but precipitous it is wrong.
Hays, J., joins in this dissent.
Tish STATE Arkansas JENNINGS *13 CR 82-23 S.W.2d
Supreme Court of Arkansas Opinion delivered May