Jordan v. State

2012 Ark. 277, 412 S.W.3d 150, 2012 WL 2355587, 2012 Ark. LEXIS 301
CourtSupreme Court of Arkansas
DecidedJune 21, 2012
DocketNo. CR 11-1209
StatusPublished
Cited by4 cases

This text of 2012 Ark. 277 (Jordan v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. State, 2012 Ark. 277, 412 S.W.3d 150, 2012 WL 2355587, 2012 Ark. LEXIS 301 (Ark. 2012).

Opinion

DONALD L. CORBIN, Justice.

1, Appellant Brian T. Jordan appeals the order of the Benton County Circuit Court convicting him of rape and sentencing him as a habitual offender to life imprisonment. Jordan raises two issues on appeal: (1) the circuit court erred in allowing highly prejudicial prior offenses into evidence in violation of Ark. R. Evid. 609; (2) he is entitled to a new trial because comments made by the circuit court to the jury and to the victim, in violation of Ark. R.Crim. P. 35.1, indicated that the circuit court was biased against him. Our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2011). We find no error and affirm.

As Jordan does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. On February 27, 2010, the Benton County Sheriffs Department received a call that a seventy-five-year-old female had been sexually assaulted in her home. The victim, N.B., identified her attacker as Appellant, a former neighbor who had recently |2begun visiting her. Jordan was subsequently arrested and charged as being a habitual offender and with one count of rape in violation of Ark.Code Ann. § 5-14-108 (Supp.2011).1

Before trial, Jordan filed a motion in limine seeking to prevent the introduction of his prior felonies, which included convictions for first-degree carnal abuse of a six-year-old child, arson, terroristic threatening, and failure to register as a sex offender. In his motion, Jordan asserted that any prior felony convictions were irrelevant and, thus, inadmissable under Ark. R. Evid. 401 and 402. Alternatively, Jordan argued that, even if the convictions were deemed relevant, their prejudicial effect outweighed their probative value and should have been excluded under Ark. R. Evid. 408, and constituted unfair evidence of bad character in violation of Ark. R. Evid. 404. The circuit court held a hearing on the motion. This hearing focused on the issue of the admissibility of the prior convictions pursuant to Rule 609 if Jordan chose to testify at trial. Jordan reiterated his argument that the prior convictions were too prejudicial to be brought in even for impeachment purposes. The State countered that the prior convictions were highly probative in a case such as this one that involved the word of the victim versus the word of Jordan, because Jordan’s credibility would be a central issue. At the conclusion of the hearing, the court announced that it was inclined to grant the motion in limine because of the potential for unfair prejudice but reserved ruling on the issue until the State filed a brief in response. Thereafter, on the day of trial, the circuit court ruled that the State would be allowed to impeach Jordan’s credibility with his prior convictions if he Lchose to testify at trial because credibility would be an issue because his defense was that the victim offered to pay him to have sex with her.

Jordan was tried before a Benton County jury on April 27-28, 2011. He did take the stand in his own defense. During his direct examination, Jordan admitted that he had four prior felony convictions. The jury found Jordan guilty and sentenced him as set forth above. He now brings the instant appeal.

As his first point on appeal, Jordan argues that the circuit court erred in allowing highly prejudicial prior offenses to be introduced into evidence in violation of Rule 609. Jordan bases his allegation of error on the contention that the circuit court did not balance the probative value of the evidence versus its prejudicial effect but instead adopted a bright-line rule in allowing the convictions into evidence. Jordan further argues that, even if the circuit court did engage in the proper analysis, it erred in concluding that the prior convictions were more probative than prejudicial. Finally, Jordan argues that the circuit court erred in allowing a far more in-depth inquiry into the convictions than Rule 609(a)(1) permits..

The State counters that Jordan’s argument is without merit because the circuit court correctly weighed the evidence and acted thoughtfully and entered its decision with care. Moreover, the State asserts that the circuit court correctly determined that the probative value of the prior convictions outweighed any unfair prejudice. Alternatively, the State argues that any error in admitting evidence of the prior conviction was harmless. Finally, the State avers that the specifics about the prior convictions were elicited by Jordan’s counsel during direct examination and, thus, Jordan cannot now complain of error that he invited.

|4This court has held that a circuit court has considerable discretion in determining whether the probative value of prior convictions outweighs their prejudicial effect under Rule 609, and that decision will not be reversed absent a manifest abuse of discretion. E.g., Ellis v. State, 2012 Ark. 65, 386 S.W.3d 485; Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). The admissibility of the prior convictions must be decided on a case-by-case basis. Id. When a defendant chooses to testify, this court has consistently permitted prior convictions to be used for impeachment purposes, even where those convictions are similar to the charge or charges before the court. Id. Factors to consider in making the probative prejudicial analysis include the impeachment value of the prior crime, the date of the conviction and the witness’s subsequent history, the similarity between the prior conviction and the crime charged, the importance of the defendant’s testimony, and the centrality of the credibility issue. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995).

Rule 609 governs impeachment of witnesses and provides in relevant part:

■ For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

Ark. R. Evid. 609(a) (2011). Jordan does not challenge the admissibility of evidence regarding his prior convictions for arson and terroristic threatening. Likewise, he does not challenge the timeliness of the convictions for carnal abuse and failure to register or that they were felonies punishable by more than one year of imprisonment. His challenge is that the ^circuit court did not conduct the proper Rule 609(a)(1) analysis or,- alternatively, erred in concluding that the probative value of the prior convictions outweighed their prejudicial effect.

We turn first to Jordan’s assertion that the circuit court failed to conduct the proper inquiry, and it is readily apparent that this argument is without merit. The record demonstrates that the circuit court properly balanced the probative value versus the prejudicial effect in considering Jordan’s assertion that the prior convictions were not admissible. In fact, in ruling that the State would be allowed to introduce the prior convictions, the court explained:

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Related

Douglas v. State
2017 Ark. 70 (Supreme Court of Arkansas, 2017)
Jordan v. State
2016 Ark. 93 (Supreme Court of Arkansas, 2016)
Henson v. State
2014 Ark. App. 49 (Court of Appeals of Arkansas, 2014)

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Bluebook (online)
2012 Ark. 277, 412 S.W.3d 150, 2012 WL 2355587, 2012 Ark. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-state-ark-2012.