Smith v. State

Melvin Mayfield, Judge,

concurring. I agree with the result of the majority opinion written by Judge Cloninger, but for reasons not relied upon in that opinion. Moreover, I agree with the concurring opinion of Chief Judge Cracraft, but I add reasons for reversal also not included in that opinion.

The appellant objected to the evidence that he had received a suspended sentence for burglary and grand larceny in 1971. The record is clear that he objected on the basis that Rule 609(b) of the Uniform Rules of Evidence did not allow this “conviction” for the purpose of attacking his credibility since it was more than ten years old. It is also clear that he objected to its admissibility as relevant under Uniform Evidence Rule 404(b). The trial judge, however, accepted the prosecutor’s argument that the “conviction” was admissible under Rule 404(b) as going to the issue of intent, motive, plan, knowledge, or absence of mistake or accident. And the judge, on his own motion, instructed the jury as follows:

Ladies and Gentlemen of the Jury, you have just heard some testimony concerning a prior criminal conviction, you are instructed and told, admonished that this testimony is not to be considered by you as evidence of guilt or innocence of Mr. Smith. It may be considered by you going to the issue of intent, motive, plan, knowledge, or absence of mistake or accident, and only for those purposes.

Although neither the judge, nor counsel for either side, knew that the Uniform Rules of Evidence had been adopted at an invalid session of the legislature, the Arkansas Supreme Court has now so held. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). Since that case was decided after the State’s brief was filed in the instant case, the State could not discuss the opinion in its brief, but the dissenting opinion in this case states that the effect of the Ricarte decision is to put the law back as it was before the Uniform Rules of Evidence were adopted by the legislature and the case of Burton v. State, 260 Ark. 688, 543 S.W.2d 760 (1976), is cited for its holding that under Ark. Stat. Ann. § 28-605 (Repl. 1962) the law (prior to the adoption of the Uniform Rules of Evidence) allowed the introduction of a defendant’s prior conviction “for the purpose of going to his credibility.” The dissent then cites Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985), for the proposition that where the trial judge errs in his reasoning but reaches the correct result, the case will be affirmed on appeal. However, even if the Marchant rule applies under the peculiar circumstances of this case, it is my contention that the trial judge did not reach the correct result.

In the first place, the judge did not hold that appellant’s “conviction” was admissible “for the purpose of going to his credibility.” The judge held, and so instructed the jury, that the prior “conviction” was admissible for the jury’s consideration of “going to the issue of intent, motive, plan, knowledge, or absence of mistake or accident, and only for that purpose.” (Emphasis added.) So, if the “conviction” was admissible for the purpose of attacking the appellant’s credibility, the judge did not correctly instruct the jury in that regard and consequently did not reach the correct result on the issue of the “conviction’s” admissibility for credibility purposes.

In the second place, it is noted in the State’s brief that Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), stated that “if other conduct on the part of the accused is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible, with a proper cautionary instruction by the court.” Thus, the State argues that since the appellant testified that he did not know his companions intended to burglarize the store involved in this case, the issue of knowledge or accident was raised and the evidence of appellant’s prior “conviction” for burglary was admissible to show the absence of mistake or accident under Uniform Evidence Rule 404(b).

Price relied upon Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), for the statement quoted above and Alford was decided long before the adoption of the Uniform Rules of Evidence by the Arkansas legislature. Indeed, when the Price case was first decided by the Arkansas Court of Appeals, see 267 Ark. 1172, 599 S.W.2d 394, this court said that Uniform Evidence Rule 404(b) only codified the law in existence before the Uniform Rules were adopted. But even if the “conviction” had some independent relevance in the instant case, and even if we concede that the court gave the jury a proper cautionary instruction, I still do not believe the court was correct (even for the wrong reason) in allowing the introduction of appellant’s “conviction” into evidence.

At this point, I join the reasoning in Judge Cloninger’s majority opinion where it relies upon our case of Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984), which held that the probative value of evidence correlates inversely to the availability of other means of proving the issue for which prejudicial evidence is offered. I agree with the majority opinion that there was little need .to introduce appellant’s prior conviction in order to show that he was not at the scene of the burglary by mistake, that the prejudicial value of this fourteen-year-old “conviction” far exceeded its probative value, and that the trial court erred in admitting it into evidence for that purpose.

As the Arkansas Supreme Court pointed out in its Price case, 268 Ark. 535, 597 S.W.2d 598, Uniform Evidence Rule 404(b) does not expressly provide for the balancing test with respect to the prejudicial evidence of other crimes where independent relevancy is involved. Therefore, we can apply such a test without relying upon the Uniform Rules and I think it is perfectly proper to apply such a test in this case. So, since the trial court did not properly instruct the jury on the use of the “conviction” for credibility purposes, and since I think its prejudicial effect far exceeded any probative value it might have as relevant evidence in this case, I concur in the reversal and remand for a new trial.

Ernie E. Wright, Special Judge, dissenting. I respectfully dissent from the majority holding which reverses the conviction of the appellant on the ground it was error to elicit testimony from the appellant of a prior conviction of the crimes of burglary and grand larceny. The prior conviction occurred more than thirteen years prior to the alleged offense. The appellant objected to the State interrogating him on cross-examination about a prior conviction more than ten years old, for burglary and grand larceny, on the ground the evidence was inadmissible under Rule 609 of the Uniform Rules of Evidence which bars evidence of convictions occurring more than ten years before the crime charged. The court overruled the objection. The only point for reversal is that the court erred in allowing evidence of the prior conviction.

Rule 609 concerns the admission of evidence for the purpose of attacking the credibility of a witness and contains a provision that evidence of the crime is inadmissible if more than ten years have elapsed since the date of the prior conviction. The Rule also provides that evidence of a prior conviction is not admissible unless the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the party or witness.

The Arkansas Supreme Court, in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), held that the Uniform Rules of Evidence were adopted at an invalid session of the legislature and never did become law. The court pointed out that earlier statutes were not affected by the repealing clause in the Uniform Rules. Therefore, in reviewing the case before us, we should look to the law as it existed prior to the attempted adoption of the Uniform Rules of Evidence. Ark. Stat. Ann. §§ 28-605 and -705 (Repl. 1962) are, therefore, still in effect, and they provide that evidence of former convictions of crimes is admissible for the purpose of going to the credibility of the witness or the weight to be given to his testimony. The pre-existing law clearly permitted the introduction of prior convictions of an accused who testifies in his defense and permitted the interrogation of the defendant on cross-examination as to prior convictions. Burton v. State, 260 Ark. 688, 543 S.W.2d 760 (1976) held that cross-examination of appellant about a prior conviction was permissible as Rule 609 was not in effect at time of trial. After Ricarte, supra we now know Rule 609 was never the law and Burton, supra is controlling. Here, there was no necessity for the State to challenge the validity of the Uniform Rules of Evidence as the judge correctly allowed the challenged evidence.

While the trial judge overruled the objection to the State questioning appellant on cross-examination about the prior conviction on the erroneous ground the evidence was admissible under Rule 404(b) of the Uniform Rules of Evidence, which under Ricarte, supra was never the law, the judge was correct in his ruling. The rule is well settled that if the trial judge errs in his reasoning but reaches the correct result, the case will be affirmed on appeal. Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985).

It is true that the evidence would be admissible under the statute as going only to the credibility of the witness and the weight to be given his testimony, but no instruction was requested by the appellant limiting the evidence to such purpose, and there was no objection to the instruction given. On appeal we do not reverse for failure to give an instruction not requested by appellant. Alexander v. State, 254 Ark. 998, 497 S.W.2d 279 (1973).

I would affirm.

Corbin, J., joins in this dissent.