Austin v. State

2016 Ark. App. 194, 488 S.W.3d 555
CourtCourt of Appeals of Arkansas
DecidedApril 6, 2010
DocketCR-15-907
StatusPublished
Cited by2 cases

This text of 2016 Ark. App. 194 (Austin v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. State, 2016 Ark. App. 194, 488 S.W.3d 555 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge

|,Bobby Austin was convicted of second-degree battery by an Arkansas County jury, sentenced as a habitual offender to fifteen years in the Arkansas Department of Correction, and fined $10,000. Austin now appeals, arguing that the trial court erred in allowing the State to introduce two misdemeanor convictions not involving dishonesty or false statement for impeachment purposes during his testimony. We find merit in Austin’s argument and reverse and remand. • '

Facts

The pertinent facts of this case hinge on different versions oí the incident as told'by Austin and Adam Bevell, the victim. On November 4, 2014, Austin and Bevell were both in a park in Humphrey, Arkansas. Bevell testified he was picking up pecans when Austin and ''two other men approached'him; he‘'“knew of” Austin but the two trien weré not friends. | «According to Bevell, Austin walked up to Bevell, hit him on the right side of his face with ⅛ metál object that was “wrapped up” in Austin’s hand, did not say anything to him after he had hit him, and then handed the object in his hand' to Cole Winfrey, one ‘of the other men with Austin. ' Bévell explained'he had to undergo surgery on his eye and his jaw after Austin had hit him; he still has no feeling on that side of his face; and'he still'has pain from the incident. Bevell denied he had agreed to give Austin a ride, asserting that he did not “run” with that crowd. Bevell said he would not have given Austin and Winfrey a ride if they had asked him for one. He stated he had no idea why Austin attacked him.

Austin testified on his own behalf, stating that he had known Bevell all his life; they had always been friends; on the day of the incident, Bevell had agreed to take Austin to Stuttgart after Bevell took his mother home; and Bevell had given him rides on other occasions. Austin said when Bevell returned to the park, Cole Winfrey and two black'guys were also at the park. According to Austin, he told Bevell he was going to get in the car; he then got into the front passenger-side seat of Bevell’s car; he saw Cole Winfrey bullying Bevell about letting him have a ride, too; Bevell was not okay with giving Winfrey a ride and pulled a knife out and moved toward the car; Bevell opened the car door still holding the knife; Bevell told Austin that he had to get out; and Bevell grabbed Austin. Austin testified that Be-vell did not calmly ask him to get out; rather he grabbed him and told him he needed to get out immediately. Austin said he got scared and reacted by hitting Bevell, but denied that he had anything" in his hand when he hit' Bevell. Austin stated he hit Bevell because he was afraid for his life and was afraid Bevell would stab him. No other person who witnessed | sthe altercation testified at trial.

The issue on appeal concerns the State’s questioning of Austin on cross-examination regarding previous misdemeanor convictions. During Austin’s testimony on direct examination in his case-in-chief, the following colloquy occurred:

Defense Counsel: Bobby, something that — something that I told this jury at the very first part of the-trial, I told them that you have been in some trouble before, haven’t you?.
Appellant: Yes, sir.
Defense Counsel: You’ve — you’ve got some convictions on your record, don’t you? >
Appellant: Yes, sir.
Defense Counsel: Been to the Department of Correction?
Appellant: Yes, sir.'
Defense Counsel: At, the time that this happened, were you on parole or probation, anything like that?
Appellant: No, sir. I’ve been doing really good, actually.

During the State’s cross-examination of Austin, the following colloquy occurred:

PeosecutoR: You have been going to the penitentiary out of this.court and other courts since you were eighteen years old, haven’t you, Mr. Austin?
Appellant: Yes, sir.
Prosecutor: .You know-how many felony convictions you have?
Appellant: Yes, sir.
[[Image here]]
| ¿Prosecutor: Mr. Austin, I believe [INAUDIBLE] [Defense Counsel] you had been doing good. He asked if you were on parole or probation or anything, and you said you had been . doing good, right?
Appellant: Yes, sir.
Prosecutor: What is your definition of doing good?
Appellant: Uh, just not hanging around the type of people, you know what I mean, like I used to when I was eighteen.
[[Image here]]
Prosecutor: You were arrested in Stuttgart, in December of ’13, for possession of controlled substance and disorderly conduct, weren’t you?
Appellant: '[NO VERBAL RESPONSE]
Prosecutor: Plead guilty—
Defense Counsel: Your Honor, may we approach again?

[Following proceedings were held at the bench out of the sound of the jury]

Defense ' Counsel: Your Honor, the Prosecutor knows full well that he can’t impeach with misdemeanor drug convictions—
Prosecutor: Judge, he said he was doing good. I didn’t — I didn’t bring it up. He said, “I was doing good.”
Trial Court: He — this would be an impeachment of his — pf his statement that he was doing well, and apparently [INAUDIBLE], I am going to allow the question.,
Prosecutor: Thank you, Your Honor.
Prosecutor: Is that correct, Mr. Austin, that you were arrested in December, in Stuttgart, less than a year before this?
^Appellant: Uh ... I would have to — I would have to cheek on the paperwork.

Standard of Review

Austin argues the trial court erred in allowing the State to question him about his misdemeanor convictions. Evidentiary rulings are reviewed under an abuse-of-discretion standard. Dickey v. State, 2016 Ark. 66, 483 S.W.3d 287. Arkansas appellate .courts do not reverse a trial court’s evidentiary rulings absent a manifest abuse of discretion and a showing of prejudice. Id.

Discussion

. [2] Arkansas Rule of Evidence 609(a) addresses impeachment by evidence of pri- or criminal convictions:

General Rule.

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Related

Norman v. State
545 S.W.3d 249 (Court of Appeals of Arkansas, 2018)
Williams v. State
2016 Ark. App. 507 (Court of Appeals of Arkansas, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
2016 Ark. App. 194, 488 S.W.3d 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-state-arkctapp-2010.