dissenting. I cannot agree with the majority decision in this case. My disagreement is not so much with rules of law referred to by the majority as it is with the application of that law to the facts.
The majority quotes the objection made to a question asked by the state on cross-examination of the appellant but fails to quote the reason given by the state to support its right to pursue the line of questions upon which the state was about to embark.
On direct examination, the appellant had testified that on two occasions he had found marijuana growing on his land; that he reported this to law enforcement officers; and that he did not plant or grow this marijuana — or any other marijuana on his land. On cross-examination, the appellant was asked:
As a matter of fact, you have gotten riled up and you used profanity and even got violent looking for marijuana at times; isn’t that correct.
Counsel for appellant objected to this question and in response to the court’s inquiry of the grounds upon which the objection was based, counsel stated:
This wasn’t covered on direct and it’s not a proper cross-examination point, Your Honor.
The court then asked the prosecuting attorney to “show me the relevance.” The prosecutor then replied:
Yes, Your Honor, I intend to tie this line of testimony — questioning — directly to Bobby Whitely and other individuals. I will establish that this individual has confronted folks in the year 1986 accusing them of stealing his marijuana and in fact got violent with them, including Mr. Whitely.
To this statement the trial judge replied:
I will overrule your objection and I will admonish the jury once again that the statements from counsel are not evidence and you should take into account the evidence that’s brought to you from the witness stand and the exhibits.
The prosecutor then went directly to questions in which he asked the appellant if he had a confrontation with Mr. Whitely in September of 1986; if he did not strike Mr. Whitely at that time; and if he did not accuse him of having stolen appellant’s marijuana. The same kind of questions were asked with regard to James Allen and John Eddie Holt.
Appellant denied that these events occurred; however, after the appellant rested his case, the state then called Whitely and Holt to the stand on rebuttal, and each of them testified that the appellant had accused them of stealing his marijuana and went into great detail concerning alleged threats and acts of violence committed against them by the appellant. James Allen described how the appellant simply walked up and hit him without any exchange of words. Allen said he was a friend of Whitely. Apparently, this was the only reason for appellant’s alleged attack on Allen.
It should be noted that the alleged threats and attacks took place before the marijuana, which the appellant was charged with growing, was discovered. The appellant argues that the “obvious purpose” of the state was to portray the appellant “as a mean, violent man who grew marijuana in the past — and, therefore, he must have been the grower and caretaker of the marijuana found on his property at the time of his arrest.” While the appellant denies that these alleged prior bad acts occurred, it is also argued that even if they did, they had no place in the trial of this case; that appellant “was not charged with battery, or terroristic threatening,” and this case should be reversed and appellant tried on the violation for which he was charged.
I agree that appellant did not have a fair trial. The problem started when the trial court overruled the appellant’s objection that the question asked was not covered on direct examination and was not proper cross-examination. Ark. R. Evid. 611(b) provides that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” Appellant did not object to the questions asked on cross-examination as to whether someone had stolen appellant’s marijuana in 1986, or whether appellant had gone around “accusing everyone of it.” The question to which appellant objected asked:
As a matter of fact, you have gotten riled up and used profanity and even got violent looking for marijuana at times; isn’t that correct.
This was not the subject matter of anything testified to on direct examination. Appellant did testify that he had never grown marijuana, and he did not object to cross-examination on that point. But the question about being riled up, using profanity, and committing acts of violence while looking for his marijuana was outside the scope of his direct testimony.
In addition, the question objected to was not a “proper cross-examination point.” Ark. R. Evid. 608(b) provides that “specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.” But in regard to cross-examination, Rule 608(b) provides as to “specific instances of the conduct of a witness” that: As to Rule 608(b), the Arkansas Court of Appeals said in Urquhart v. State, 30 Ark. App. 63, 782 S.W.2d 591 (1990):
They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to whose character the witness being cross-examined has testified.
In interpreting this rule, the supreme court has adopted a three-fold test for admissibility: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. Mackey v. State, 279 Ark. 307, 651 S. W.2d 82(1983). The latter prong of the test has been taken to mean a lack of veracity rather than dishonesty in general. McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).
30 Ark. App. at 66. Carrying a pistol into a courtroom is not probative of whether the witness is truthful or not. Richmond v. State, 302 Ark. 498, 505, 791 S.W.2d 691 (1990). Embezzlement is not probative of untruthfulness and therefore cannot be inquired about on cross-examination under Rule 608(b). Stiz v. State, 23 Ark. App. 126, 743 S.W.2d 18 (1988). And I do not think that whether appellant was riled up, used profanity, or committed acts of violence is probative of whether he is truthful or not. Thus, under Rule 608(b), it was error to overrule the objection to the question asked on cross-examination of appellant.
Although the question asked on cross-examination violated the cross-examination provisions contained in both Rule 611(b) and Rule 608(b), the majority opinion in this case holds the question was proper under what is called “impeachment by contradiction.” One case cited for that proposition is Spicer v. State, 2 Ark. App. 325, 621 S.W.2d 235 (1981). There, the appellant testified on direct that he had never been previously involved in a drug transaction, and we held it was not error to ask on cross as to whether he had been guilty of such a crime on a certain date. We cited Montaque v. State, 219 Ark. 385, 390, 242 S.W.2d 697 (1951), for authority and quoted the following language from that opinion:
Counsel for the State had a right to question appellant on cross-examination as to prior arrests, in the circumstances, in an effort to show that he had not truthfully answered the above questions propounded by his own counsel on direct examination.
We said in Spicer that although Montaque was decided prior to the Uniform Rules of Evidence, the same result was reached in federal courts which have the same evidence rule as our Rule 608(b). However, we also pointed out that a limitation on the right to cross-examine about a matter brought out by direct is found in evidence Rule 403 which allows the court to exclude evidence if its probative value is, among other factors, substantially outweighed by the danger of unfair prejudice or the misleading of the jury. 2 Ark. App. at 331-32. Moreover, we said the court “may also require a good faith showing on the part of counsel” as suggested in Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), and Harper v. State, 1 Ark. App. 190, 614 S.W.2d 237 (1981).
The majority opinion cites McFadden v. State, 290 Ark. 177, 717 S. W.2d 812(1986), as authority. I have no problem with that case or other cases like it. It relies on Arkansas cases which hold that a party, by giving direct evidence of good character, opens the door to rebuttal evidence showing bad character. It cites authority which refers to this as “fighting fire with fire,” and cites a United States Supreme Court case, Walder v. United States, 347 U.S. 62 (1954), as an example of the application of that rule.
However, McFadden as did Spicer v. State, supra, notes a limitation on the use of evidence of other crimes to “fight fire with fire.” The case of Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1990), is cited for this limitation. That case held that “it is mandatory” for the trial judge to also review the objections to such evidence under the evidentiary standards prescribed by Rule 403. That rule provides that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
So, in the instant case, my view is that the trial court should have sustained the objection made by appellant to the cross-examination question set out in this and the majority opinion. Evidence that the appellant had claimed to own the marijuana previously growing on his land would clearly be admissible, under the theory advanced in the majority opinion and also under Ark. R. Evid. 404(b) (as proof of intent, plan, or knowledge). But the ruling made by the court allowed evidence of bad acts and violations of the law to also come in. Once the questions were allowed on cross-examination “the fat was in the fire” and the matter was out of control. Appellant did not have to object to the rebuttal evidence after the ruling made on the objection to the question on cross-examination. See E. Cleary, McCormick on Evidence, § 52 at 132 (3rd ed. 1984) (most courts hold that one is entitled to assume the judge will continue to make the same ruling and the objection need not be repeated). Indeed, it is probable that it would have hurt appellant’s cause in the minds of the jury to have objected again.
Had the court sustained the objection to the cross-examination question, the evidence of bad acts and unlawful conduct could not have been revealed to the jury until the evidence was offered on rebuttal. At that time appellant would have been required to object to each question he thought improper and the court could have controlled the matter.
I would reverse and remand so that appellant can be tried on the violations charged and not on the uncharged bad conduct with which most of the evidence in this case was concerned.