dissenting. I respectfully dissent from the part of the majority opinion which deals with the admissibility of a prior felony conviction for the purpose of attacking the credibility of a witness. The appellant decided not to testify in his own defense, based on the trial court’s ruling regarding the admissibility of a prior conviction. He now alleges that the trial court erred.
Where a defendant in a criminal case testifies in his own behalf, his credibility becomes an issue, and the State may impeach his testimony by proof of prior felony convictions. Uniform Rules of Evidence, Rule 609 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979); Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Rule 609 (a) provides:
General Rule. 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 statements, regardless of the punishment.
In the case at bar, the prior conviction for rape or sexual abuse would only be admissible because of its seriousness and not because it involved dishonesty.
The purpose of impeachment evidence is to show background facts which bear directly on whether jurors ought to believe a particular witness, rather than other and conflicting witnesses. The rationale for admitting prior crimes under Rule 609 (a) is that an accused should not be permitted to appear before a jury as a reasonably trustworthy person of good character, when his criminal record is to the contrary. United States v. Lewis, 626 F.2d 940 (D.C. Cir. 1980).
The theory that all felony convictions are relevant to credibility depends on the following assumptions: (1) that a person with a criminal record has a bad general character, and (2) that a person with a bad general character is the type of person who would be inclined to disregard the obligation to testify truthfully. From these assumptions, the jury may then determine that the witness is not testifying truthfully. 3 J. Weinstein, Evidence § 609 [02] (1981).
In a criminal case, the accused with a criminal record runs the risk that the jury may decide to punish him because he is a bad person, regardless of his guilt; or that the jury will assume that since he has been previously convicted of a crime, then he is therefore likely to be guilty of the crime charged. These are precisely the reasons why the use of character evidence is barred, at least where its sole purpose is to prove that the accused acted in conformity with his character. Uniform Rules of Evidence, Rule 404 (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979); Prices. State, 268 Ark. 535, 597 S.W.2d 598 (1980); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954).
If the accused testifies in his own behalf, he faces impeachment by proof of his prior felony convictions and the risk that the jurors, instead of considering the convic-dons as relevant to credibility, will consider them as evidence of guilt, despite instructions to the contrary.
Generally, cases involving Rule 609 (a) are concerned with whether the trial court abused his discretion in determining whether the probative value of a prior conviction outweighs its prejudicial effect. However, in the case at bar and in Bell v. State, 6 Ark. App. 388,644 S.W.2d 601 (1982), defense counsel offered to stipulate to the fact of the prior conviction, and sought to exclude that which would be most prejudicial, the nature of the prior crime. The majority has chosen to treat this case as a routine probative value versus prejudicial effect case, when an additional, significant element is present. The majority opinion does not discuss how telling the jury about the nature of the prior crime has any probative value, much less how that probative value outweighs its prejudicial effect.
Given the theory behind Rule 609 (a) (1), I can see no justification for allowing the jury in the case at bar to know the nature of the crime for which the appellant was convicted, when his counsel had requested that the specific crime not be revealed. The nature of the crime had little or no relevance to the credibility of the appellant, unlike the crimes contemplated by Rule 609 (a) (2) which involve dishonesty or false statements, and the possibility of prejudice was extremely high, because of the similarity with the crime charged. Particularly in light of the nature of the prior crime, I believe that the State should have been limited to proving the fact of the prior conviction, assuming that the probative value of that fact outweighed its prejudicial effect. In deciding whether to allow into evidence the prior conviction, the trial court said:
... I have before me a rape case in which the defense is one of consent and I have no evidence of consent at this time.
In anticipating that Mr. Williams will take the stand and tell his story that the intercourse did occur by consentual agreement, then I will permit the prosecutor to inquire of him as to his prior sexual activities for credibility purposes. I’m permitting him to inquire into it for credibility purposes.
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.
The jury was entitled to know that the appellant was a convicted felon. Rule 609 (a) so states. However, in balancing the probative value of the prior conviction against its prejudicial effect, the trial court could have given the jury the probative information (the fact of the conviction) without the prejudicial information (the nature of the crime), and thereby not affected the free exercise of one of appellant’s rights (his decision whether to testify in his own defense).
The interests of the State are protected by such an approach. In cases where the prior crime is similar or identical to the one charged, the risk of prejudice is very high. If the trial court excludes any reference to the prior crime, then justice is not served because the defendant appears to the jury as a law-abiding person of good character, rather than a person whose credibility is suspect by virtue of a felony conviction. On the other hand, if the trial court allows the nature of the crime in evidence, then the defendant must decide whether to testify, with the knowledge that the jury may convict him based on an improper use of the prior conviction. When it is possible to apply the Rules of Evidence so as to safeguard the rights of the State and the defendant, and to accomplish the purpose for which the Rule was adopted, I think that is the better approach. I think the trial court should have limited the State’s proof to the fact of the prior conviction.
The position taken in this dissenting opinion is not inconsistent with the prior decisions of the Arkansas Supreme Court or this Court. In Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), and Washington v. State, 6 Ark. App. 85, 658 S.W.2d 690 (1982), the appellants never offered to stipulate to the fact of their prior convictions. This Court and the Arkansas Supreme Court decided those cases on the issues presented to them. In the case at bar, I think the majority opinion ignores the distinguishing factor of this case, and that is the offered stipulation.
I would reverse and remand for a new trial.