Williams v. State

Donald L. Corbin, Judge.

Appellant, Richard Williams, was convicted by a Perry County jury of rape, a violation of Ark. Stat. Ann. § 41-1803. He was sentenced toa term of twenty-five years of imprisonment. We affirm.

Appellant contends that the trial court erred in denying his motion in limine wherein he asked the Court to order the State not to use evidence of his prior rape or sexual abuse conviction to impeach his credibility as a witness. Appellant contended at trial that the prior crime had no relation to the defendant’s character for truthfulness; that the only purpose for eliciting the nature of the prior crime would be to imply that appellant, having been convicted of that crime previously, was likely to be guilty this time; and that any probative value of the evidence of the prior crime was greatly outweighed by its prejudicial nature. Rule 609 (a) of the Arkansas Uniform Rules of Evidence provides in pertinent part:

[f]or 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.

In Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), the defendant was charged with the sexual abuse of a nine-year old boy. The trial court ruled that if the defendant elected to testify, the State would be allowed to impeach his credibility by showing that he had pleaded nolo contendere to an earlier charge of rape that involved a young boy. The Supreme Court reversed the trial court. The Court noted that “[t]here may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible, but there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that ‘if he did it before he probably did so this time.’ ” The Court concluded that on the facts of the case before it involving the “particularly shameful and outrageous crime” of sexual abuse of a child, “the prejudicial effect of the previous conviction clearly outweighed its value as bearing on credibility.” The Court in Jones v. State, supra, also pointed put that the defendant had two previous convictions for burglary and theft which could have been used to impeach his credibility as a convicted felon and that proof of the rape conviction would have been of “scant probative value.”

In the present case, appellant admitted that the State might properly be allowed to impeach his credibility by proof that he was a convicted felon without mentioning that the prior felony conviction was for rape or sexual abuse.

In Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), the defendant was charged with rape of a 78 year-old woman. At the pretrial hearing on the motion in limine in which the defendant sought to exclude evidence of prior convictions involving burglary and rape, the trial court ruled that the prior convictions were permissible pursuant to Rule 609. The trial court in Smith also ruled that the probative value of the evidence outweighed the possibility of prejudice to the defendant. The Supreme Court affirmed the trial court’s ruling citing Jones, but went on to say, "These matters must be decided on a case by case basis.”

The trial court is required to weigh the probative value of the prior conviction against its prejudicial effect. Here, the trial court made the following ruling at the hearing on appellant’s motion in limine as follows:

The bottom line of this case is whether the jury’s going to believe Mrs. Carter that it was forced or whether they’re going to believe Mr. Williams that it was by consent. And the State is entitled to attack Mr. Williams’ credibility just as you attacked Mrs. Carter’s credibility by inquiring that her husband was in the penitentiary. It shouldn’t but it did go to her.

But, be that as it may, the bottom line is credibility. I’m going to permit the State to inquire of his prior conviction for credibility purposes. And, if you want me to instruct the jury at that time, I will do so.

We cannot say that the trial court abused its discretion in this instance.

Finally, appellant contends that the trial court erred in failing to grant a mistrial upon the revelation by the victim on redirect that her husband was in jail with the appellant. This issue arose out of the following testimony by the victim:

Q. Did the defendant, Richard Williams, know that your husband was in prison?

A. Yes.

Q. Do you know how he knew that?

A. They had been jailed together.

Appellant concedes that no motion for mistrial was requested or admonition asked. The granting of a mistrial is a drastic remedy and should be resorted to only when the prejudice is so great that it cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The declaring of a mistrial lies within the discretion of the trial court. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Its actions will not be reversed absent a clear showing not only of abuse of that discretion but of prejudice likely to result. Daugherty v. State, 3 Ark. App. 112, 623 S.W.2d 209 (1981); Finch v. State, 262 Ark. 313, 556 S.W.2d 434(1977).

Although appellant cites Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982), in support of his argument, we believe its rationale is applicable in support of the State’s position that a mistrial was not warranted. The Supreme Court in Glick, supra, stated:

Conceding the testimony had some prejudicial aspects, it should be said that the state has a right to meet its burden of proof from the relevant facts of the case, even though some coincidental detriment to the defendant may result. If one of the victims of the robbery knew the accused in the penitentiary and recognized him because of that association, the state cannot be deprived of probative evidence connecting the defendant to the crime simply because there are dual aspects to such evidence. Appellant cites Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), but that decision is not in point — it deals with the question of when evidence of a prior offense, not part of the offense being tried, can be introduced. We are not dealing with prior offenses but simply with admissible evidence from which a jury might infer the accused had been, or was, in the penitentiary. While the state cannot make direct proof of that fact (and, indeed, should refrain from even drawing needless attention to it), because of the heavy burden of proof placed on the state under the law, it cannot be denied the opportunity of meeting that burden simply because some of the evidence has a coincidental implication not favorable to the accused. See Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980); and Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971).

The victim in this case merely stated the reason she knew that the appellant was aware that her husband did not live with her. Appellant injected this matter into the case through his questioning of the victim during cross-examination and he cannot complain of what was developed. Philmon v. State, 267 Ark. 1121, 593 S.W.2d 504 (Ark. App. 1980).

We affirm.

Mayfield, C.J., concurs. Cooper and Glaze, JJ., dissent.