Smith v. State

718 S.W.2d 475, 19 Ark. App. 188, 1986 Ark. App. LEXIS 2493

Opinions

Lawson Cloninger, Judge.

Following a jury trial, appellant was convicted of burglary and sentenced to seven years in prison. For his appeal, appellant argues that the trial court erred in allowing the state to cross-examine appellant about his 1971 felony conviction for burglary and grand larceny. We agree with appellant’s arguments and reverse and remand.

At the trial, Meyer Brick testified that on December 18, 1984, he was awakened by the alarm system he had set up at his store. He and his wife went immediately to the store, which was near his home. When he got there he saw two figures inside the store, but could not positively identify either of them. He then walked around to the alley and saw two people running. Mr. Brick shot at the fleeing figures, but did not know whether anyone had been hit.

Appellant was found about one hour later. He had been shot and had gone for help to a house he had seen with lights on. The residents of the house called the police and an ambulance.

Appellant testified that he had gone to the store with two other men after lending the driver $5.00 for gas. They were supposed to take the other man home, who said he lived behind the store. Appellant and the driver waited in the car while the other man went and got some money to repay appellant. When he did not return, the driver got out of the car and went to see what had happened. When the driver didn’t return either, appellant walked down the alley beside the store and noticed the door standing open. He stated that at that point he realized the two men were burglarizing the store. Appellant then saw Mr. Brick coming toward him with a gun and appellant began running. The driver of the car ran out of the store and began running. Appellant stated that he did not know what became of the other man. When Mr. Brick shot appellant the driver of the car helped appellant to the car and they drove off. They hadn’t gotten far when the car’s engine blew up. The driver of the car pulled appellant out of the car and left him in a ditch. Appellant then went to the house where he was found.

When appellant had completed his testimony, the defense rested its case. The judge then recessed until the next day. The next morning appellant took the stand again to explain the presence of a knife that some of the jurors had a question about. After testifying that he did not know where it came from, the state was allowed to cross-examine appellant about his 1971 conviction. The trial court explained that it was allowing the testimony because appellant had been allowed to testify extensively about his work record, his service record and the medals he had won in Viet Nam for heroism. The trial court felt that it would be unfair to the state to allow this testimony to go unrebutted and gave a limiting instruction to the jury that the testimony was to be considered only as proof of intent, preparation, plan, knowledge, identity or absence of mistake.

Appellant first argues that the questioning by the state should not have been allowed under U.R.E. Rule 609(b).¹ We agree. Where a defendant in a criminal case testifies in his own behalf, his credibility is placed in issue, and the state may impeach his testimony by proof of prior felony convictions. Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982). However, the use of a prior conviction for impeachment purposes is limited by Rule 609(b), which provides:

Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

Appellant pleaded guilty and received a suspended sentence in 1971, which was fourteen years earlier than the trial date. It was error for the trial court to allow the cross-examination for impeachment purposes.

Appellant also argues that the trial court erred in holding that the questioning was proper according to U.R.E. Rule 404(b). Although this issue is not as easily resolved, we agree with appellant’s argument.

Rule 404(b) permits evidence of other crimes, wrongs or acts in order to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Such evidence, however, is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Evidence of other crimes must pass two tests to be admissible: (1) the other crimes’ evidence must be independently relevant, and (2) must meet the probative value versus unfair prejudice balancing test of U.R.E. Rule 403. Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984). The probative value of evidence correlates inversely to the availability of other means of proving the issue for which the prejudicial evidence is offered. In other words, if the state has no other means to prove the issue, then the evidence is highly probative, and that may outweigh its prejudicial effect. However, in cases where the state has other means of proving the issue, then the balance is tipped in favor of it being excluded because of its prejudicial effect. Golden, supra.

In this case, the state argues that the evidence was needed to show that appellant was not at the scene of the burglary by “mistake” as he claimed. However, the state had already shown that appellant was shot fleeing the scene of the crime. Mr. Brick testified that he only saw two people, not three, as claimed by appellant; plastic gloves covered with blood that was shown to be appellant’s blood type were recovered from the scene; and a knife that was taken from the store was found in appellant’s pocket.

In reviewing the admissibility of prior convictions for the purposes stated in Rule 404(b), this court reviews the facts to determine if, without the prior burglary convictions, the state proved the burglary charges against appellant. Golden, supra. Since the state’s evidence in this case would have amply supported appellant’s conviction, the prior convictions should not have been admitted. The trial court abused its discretion in applying the balancing test between probative value and unfair prejudice. The probative value of evidence of a fourteen-year-old conviction was slight if present at all, and the probability of unfair prejudice was great.

The state argues that the questioning was proper to rebut appellant’s previous testimony about his exemplary conduct during the Viet Nam War. In support of its argument, the state cites the case of Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), in which the Arkansas Supreme Court held that, by the defendant’s testifying to his past conduct, the door was opened to the admission of rebuttal evidence which otherwise might be inadmissible. However, that case is not on point. Pursley was a civil case where Price was suing Pursley for the battery Pursley committed. While testifying in his own defense, Pursley stated that he had “never had any problem other than a speeding ticket in his life.” The police officer who investigated the battery was allowed to testify in rebuttal that Pursley had a reputation for violence in the community when he was drinking. The past conduct testified to was relevant because Price alleged that Pursley had been drinking when the battery occurred. The court said, “We do not hold or imply that Ark. Unif. R. Evid. is abrogated, but we conclude under the circumstances of this case, the trial court did not abuse its discretion in admitting the testimony.” Pursley, 283 Ark. at 34, 670 S.W.2d at 449.

In this case, appellant made no sweeping denial of any prior wrongdoing; he only testified concerning his work record and service record. The evidence was not admitted to rebut any particular character trait as in Pursley, and which is permitted by U.R.E. Rule 404(a)(1). The conduct testified about in Pursley did not result in conviction for a crime, and there was slight showing by the state that appellant’s conviction for burglary fourteen years ago was in any way relevant to the burglary he was being tried for.

Reversed and remanded for a new trial.

Cracraft, C.J., and Mayfield, J., concur. Corbin, J., and Wright, Special Judge, dissent. Glaze, J., not participating.

Footnotes

1

On October 13,1986,inthecaseof.R;ca/'iev. State, 290 Ark. 100,717 S.W.2d 488 (1986), the Arkansas Supreme Court held that the Uniform Rules of Evidence were adopted at an invalid session of the Arkansas Legislature, and that the Rules did not become law. The court further stated in Ricarte that, “under our own rule-making power and under existing statutory authority, as of this date we adopt the Uniform Rules of Evidence as the law in Arkansas.”