dissenting. So long as the evidence against an accused is “overwhelming,” a prosecutor, acting in the name of the State of Arkansas, can do anything in the course of obtaining a conviction! That is the essence of the majority opinion.
“Whatever the reason, whether it be intentional or oversight, a prosecutor’s failure to disclose discoverable information to a criminal defendant is an action which should be avoided.” (Emphasis added.) Compare that language quoted from the majority opinion with this language from Ark. R. Crim. P. 17.1, to which I have also added emphasis:
RULE 17.1. Prosecuting Attorney’s Obligations.
(a) Subject to the provision of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
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(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.
The majority opinion thus begins by altering the terms of the Rule from mandatory to discretionary. It then says we and the trial court may forget the Rule as long as the evidence of guilt is overwhelming.
On February 2,1990, Hall’s counsel filed a discovery request seeking “[a]ny record of prior criminal convictions or charges or allegations of misconduct against persons whom the prosecuting attorney intends to call as witnesses at the hearing or at trial. . . .” On February 20, the prosecutor responded, listing Gladys Franklin as a witness. In April, 1990, Gladys Franklin was charged with arson. On May 30,1990, Franklin pleaded guilty to arson, was fined $500 and put on probation with the prosecutor in attendance. On July 11, 1990, the prosecutor updated his response to the discovery request with the name of an additional witness and a number of physical items he intended to present at the trial. No mention was made of the fact that Ms. Franklin had been convicted of a crime.
Gladys Franklin was a key witness against Hall. If the jury had had doubts about the testimony of the victim, Ms. Franklin’s testimony would have been the only testimony directly identifying Hall as having been with the victim on the day the crime occurred.
As the majority opinion points out, the jury took considerable time in reaching its decision. The jurors might well have had some doubts. Experts testified that no latent fingerprints in Hall’s car matched those of the victim, and pubic hairs found on the victim were not similar to Hall’s! Of course, no one can say, in the words of the majority opinion, “the jury would have reached a different verdict had Franklin’s testimony been impeached.” If the accused has to prove that to get a reversal for violation of a rule, then the rule might as well not exist.
Had Hall’s counsel been apprised of the fact that Franklin had been charged with arson in the same judicial district in which this trial was taking place, his cross-examination of her could have all but nullified her testimony in the eyes of the jurors who, obviously struggled with the evidence as it was. Was it “prejudicial” for Hall’s counsel not to have had that information? Yes, without a doubt.
In Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), we opined that overwhelming evidence of guilt may be considered along with allegations of error, and we held that, “No longer is it presumed that simply because an error is committed it is prejudicial error.” In Johnson v. State, 303 Ark. 313, 796 S.W.2d 342 (1990), we overlooked error largely on the basis of inconsistent positions taken by Johnson’s brief with respect to that error. In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), we wrote we would not “count” the error of failure of the prosecution to make a tape recording of Mitchell’s confession available to him, noting the “overwhelming evidence of guilt,” but we emphasized the “good faith” of the police officers who had erased the tape so that it could be reused. With respect to an error in selecting the jury in that case, we said we were able to overlook a “technical” default where the evidence of guilt was overwhelming, the error was harmless, and thus the accused was not prejudiced by the mistake. We could not find evidence that the jury treated Mitchell in any way that was prejudicial to him. In this case, to the contrary, it is unquestionable that there was prejudice toward Hall, and the prejudice was unfair although the trial court concluded it was the result of an “oversight.”
The facts of this case show that a heinous and revolting crime was committed. I cannot, however, condone the conclusion that we can overlook the serious violation of Hall’s rights because of the nature of the crime or solely because the evidence against him was strong or even “overwhelming.” Any defendant is entitled to fair treatment as it is spelled out in our Rules, regardless of the strength of the evidence against him or her.
If we begin to disregard our explicit Rules which we purport to establish to protect the rights of individuals, the erosion of personal liberties will escalate. We will no longer be able to claim with any degree of honesty to be a “government of laws.” Hall should be given a new trial in which his rights are respected regardless of the nature of the crime with which he is charged and regardless of the strength of the evidence against him. That will be a small price to pay for the liberties we enjoy as a result of fairness in the courtroom.
I respectfully dissent.
Holt, C.J., and Dudley, J., join in this dissent.