Smith v. State

872 S.W.2d 843, 316 Ark. 407
Supreme Court of Arkansas·Decided April 18, 1994·No. CR 93-758·Published·Cited by 14 cases

Opinions

Steele Hays, Justice.

Appellant W.L. Smith was found guilty by a jury of four counts of rape. He was sentenced to forty years imprisonment on each count. Two of the counts are to be served consecutively and the two remaining counts concurrently, for a total of eighty years in the Department of Correction. On appeal he raises three points for reversal: (1) the trial court erred in allowing evidence of prior offenses to be admitted, thus causing the defendant to suffer substantial prejudice; (2) the trial court erred when it deviated from established trial procedures by ordering counsel to make closing arguments prior to jury instructions being given; and (3) the trial court erred in allowing extrinsic evidence of prior misconduct, in the form of a police report, to be admitted into evidence. Finding no error, we affirm the judgment of conviction.

The appellant was charged by information with five counts of rape in violation of Ark. Code Ann. § 5-14-103 (Repl. 1993) for engaging in sexual intercourse or deviate sexual activity with his stepdaughter Amy Honey, who was less than fourteen years of age, on or about April 10, 11, 12, 13, and 14, 1990. At trial,' the state’s case was based principally upon the testimony of the thirteen-year-old victim.

Janet Smith, the victim’s mother, was in the hospital for approximately one week beginning on April 9, 1990. Her daughter testified she had been sexually penetrated by the appellant on four occasions during that period of time. In addition, Dr. Hoy Spear, a licensed physician, testified that he examined the victim on September 11, 1990. In his opinion, she had been subjected to vaginal and rectal intercourse. Ms. Tammy Bracewell, the victim’s aunt, and Dr. Spear both testified that the child had stated appellant had intercourse with her.

Since the child testified only to four incidents, the trial court directed a verdict in favor of the appellant on one count of rape. In his defense on the four remaining counts, the appellant denied the allegations, challenged the veracity of the victim and contended he was out of town at the time of one of the alleged incidents. The testimony indicated the appellant was a truck driver and he left for Moberly, Missouri on April 10, 1990. According to the testimony, the trip from the family home in Grubbs, Arkansas (Jackson County) to Moberly takes approximately 24 hours. The jury returned a verdict of guilty on four counts of rape.

I.

The appellant first contends the trial court erred in allowing evidence of prior offenses to be admitted. On direct examination of Leonard Pickel, a witness for the defense, the following exchange took place between counsel for the defense and the witness:

Q. Now, Mr. Pickel, you testified that you’ve known W.L. Smith for over ten years?
A. Yes, sir.
Q. Based on your knowledge of him, do you feel it is possible that he could’ve repeatedly raped his daughter, who you also know, the five nights that Janet was in the hospital in April of 1990.
A. In my opinion, I would say no, I don’t think he would have repeatedly raped her during that period of time based on knowing him.

Prior to cross-examining Mr. Pickel, the state submitted Mr. Pickel had testified regarding the character of the accused and requested they be allowed to cross-examine the witness accordingly. The appellant objected to questions concerning prior charges; however, the trial court overruled the objection. Consequently, during.cross-examination, the state asked Mr. Pickel the following questions:

Have you heard, Sir, that on August 29th, 1987, the defendant, W.L. Smith, did play with the breast and lower part of the body of a twelve year old girl named Jennifer Stinley and did continue playing with her until she was able to break away from him?
Have you heard, Sir, that on the 26th day of May, 1989, W.L. Smith raped a lady named Deanna Stinley [Stilley] by forcible compulsion in a semi-truck that was being, that Mr. Smith was driving?

Mr. Pickel acknowledged that he had heard of both accusations.

A.R.E. Rule 404(a) provides in pertinent part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; . . .

(Emphasis supplied.)

Once the admissibility of character evidence is established under Rule 404, Rule 405 establishes the methods of proof which may be utilized. A.R.E. Rule 405, Methods of proving character, provides in pertinent part:

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances' of conduct.

(Emphasis supplied.)

Mr. Pickel was asked if, based upon his knowledge of the appellant, he thought he could have committed the crimes with which he was charged. The only purpose the questions could have had was to show the appellant was a person not disposed to commit the alleged crimes. Therefore, he was a character witness pursuant to Rule 404.

We have recognized that by producing a character witness the defendant opens the door to evidence which might otherwise have been inadmissible. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). Rule 405 clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’ knowledge of specific instances of conduct. Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989); Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986). Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion. Morris, supra. Further, Rule 405 places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross-examination may occur. Reel, supra; Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992).

We find the trial court did not commit error by allowing inquiry into relevant specific instances of conduct during cross-examination of Mr. Pickel. Whether Mr. Pickel was aware of the two prior incidents tested his knowledge of the defendant’s character and the weight to be given to his opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

Smith v. State, 872 S.W.2d 843, 316 Ark. 407 (Ark. 1994).

872 S.W.2d 843 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Colton Sanders v. State of Arkansas
2025 Ark. App. 238 (Court of Appeals of Arkansas, 2025)
Santiago Vasquez Jr. v. State of Arkansas
2025 Ark. App. 65 (Court of Appeals of Arkansas, 2025)
Donald J. Merrill v. State of Arkansas
2024 Ark. App. 575 (Court of Appeals of Arkansas, 2024)
Tristan Tiarks v. State of Arkansas
2021 Ark. App. 325 (Court of Appeals of Arkansas, 2021)
Johnson v. State
378 S.W.3d 152 (Court of Appeals of Arkansas, 2010)
Frye v. State
2009 Ark. 110 (Supreme Court of Arkansas, 2009)
Donovan v. State
32 S.W.3d 1 (Court of Appeals of Arkansas, 2000)
Echols v. State
936 S.W.2d 509 (Supreme Court of Arkansas, 1996)
Rush v. State
919 S.W.2d 933 (Supreme Court of Arkansas, 1996)
Gooden v. State
902 S.W.2d 226 (Supreme Court of Arkansas, 1995)
Rank v. State
883 S.W.2d 843 (Supreme Court of Arkansas, 1994)
Smith v. State
872 S.W.2d 843 (Supreme Court of Arkansas, 1994)