Timmons v. State

688 S.W.2d 944, 286 Ark. 42, 1985 Ark. LEXIS 2009

• Court: Supreme Court of Arkansas
• Decided: May 13, 1985
• Docket: CR 84-207
• Status: Published

Opinions

John I. Purtle, Justice.

The appellant was convicted of rape [Ark. Stat. Ann. § 41-1803 (Repl. 1977)] and sentenced to 60 years imprisonment. On appeal he argues the prosecuting attorney engaged in prejudicial tactics and arguments during the course of the trial. We agree with appellant’s argument and reverse and remand.

The appellant attended a party at the victim’s house. According to the victim the appellant returned to her residence after the other guests had left and repeatedly raped her. She further testified that when she ran from the house to escape he overtook her and raped her several more times. One witness called by the state during the trial was a forensic serologist with the state crime laboratory. The doctor who examined the victim did not testify at the trial. At a pretrial conference, it was agreed by the state and the appellant that the serologist witness could not connect the chain of custody about the materials she had examined. During the trial, the state called the witness and the appellant objected to her testimony. At that point the state again admitted that it could not establish the chain of custody. Over the objection of appellant the state asked: “Did you have an occasion to examine some items submitted to you from [the prosecuting witness] ?” The court then sustained the objection. A request for a mistrial was denied.

During the closing argument the state’s attorney stated he had put the serologist witness from the crime lab on the stand and the appellant had objected to her testimony. He also referred to her testimony. The court instructed the jury not to consider the statement by the state’s attorney about a witness who did not testify.

The question to be decided is whether it is prejudicial to allow the state to call a witness to the stand when it is already known that the witness cannot give valid relevant testimony and then argue to the jury that it was the appellant who prevented the jury from hearing the evidence. We hold that under the circumstances of this case it was prejudicial.

We have long held that a prosecuting attorney should not be tempted to appeal to prejudices, pervert testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a conviction by arguments except those which are based upon the evidence in the case. Holder v. State, 58 Ark. 473, 25 S.W. 279 (1894). In the more recent case of Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981), we reversed the conviction because the state’s attorney asked a witness a question which was in reality testimony by the prosecutor. The precise question, addressed to a psychiatrist who had examined the defendant, was: “Okay. Let’s — Do you recall telling me in our telephone conversation that the defendant would be very likely to do this sort of thing again?” In Dean the court sustained the objection and denied the request for a mistrial. We are in the same posture now as we were then. In keeping with our precedent we are bound to reverse. Our most recent pronouncement on prosecutorial misconduct is found in Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). In Foster the state called an accused accomplice knowing she would invoke her Fifth Amendment rights. The present case is almost identical.

We cannot say with any degree of certainty that the error was not prejudicial to. the appellant. In fact, it is quite clear that this conduct was prejudicial and could not have been corrected by anything less than a new trial. Accordingly the case is reversed and remanded for a new trial.

Reversed and remanded.

Hickman, J., concurs. Hays, J., dissents.