I concur in the result reached by the majority, but I write separately. I believe that what is at issue is whether a criminal defendant may make a judicial admission that he or she is a convicted felon in a trial on possession of a firearm by certain persons and thereby make evidence of the specific nature of the felony inadmissible in the guilt phase of the trial. I further believe that the use of the term “stipulation” by the parties and the majority is in error.
A stipulation is “[a] voluntary agreement between opposing parties.” Black’s Law Dictionary 1455 (8th ed. 2004). See also Dinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959). I do not believe that the State may be compelled to enter into an agreement with a criminal defendant.
An admission is an acknowledgment or concession of a fact that tends to prove guilt. People v. Zichko, 118 Cal. App. 4th 1055, 13 Cal. Rptr. 3d 509 (2004). In this case, Ferguson was willing to admit to the court that he was a convicted felon. The jury could have been instructed that Ferguson was a convicted felon, and that they were not to consider the issue.
An admission may be to a fact rather than to the crime and all its elements. In other words, an admission is not necessarily a confession that would justify conviction on the crime charged; rather, it goes to prove a fact that is necessary to prove guilt. State v. Litton, 161 S.W.3d 447 (Tenn. Ct. App. 2004). Further, a judicial admission is a formal declaration made in the course of judicial proceedings for the purpose of dispensing with proof of facts. People v. Backus, 952 P.2d 846 (Col. Ct. App. 1998). A judicial admission withdraws a particular fact from the realm of dispute. State v. McWilliams, 177 W. Va. 369, 352 S.E.2d 120 (1986); see also Kelly v. State, 623 S.W.2d 65 (Mo. Ct. App. 1981).
There is no doubt that as the State argues, it is entitled to prove its case as conclusively as it can. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). However, what the State may use to obtain its conviction is obviously limited to relevant evidence. In this case, the crime requires proof that Ferguson has a prior felony conviction. The degree or nature of that conviction is only relevant to the jury in sentencing and should only be admitted in the sentencing phase. The judgment and commitment order certainly is proof of the prior conviction. However, it also contains evidence regarding the nature and severity of the prior felony that is not relevant to guilt. In this case, where the underlying felony is similar to the assaults being tried, the risk of prejudice is great. Redaction of irrelevant information on the judgment is not at issue in this case because redaction was not raised or argued. If the only evidence of the proper conviction were the judgment, an analysis under Ark. R. Evid. 403 might lean toward admission because it is the only probative evidence of the felony. However, if there is other evidence that only reveals to the jury in the guilt phase that the element of a prior felony is met, it is clearly preferable. Ferguson offered to admit to the court that he was a convicted felon. That provided the evidence that the State needed to prove its case. Old Chief v. U.S., 519 U.S. 172 (1997), and the case’s interpretation of the issue under Fed. R. Evid. 403 is consistent with this position that the evidence of the specifics of the underlying crime should not be admitted.
Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980), is not controlling. First, it must be distinguished because it applies old law. Combs was decided before bifurcated trials were required. Combs does correctly note that the nature of the crime is relevant on sentencing, which it is, but that evidence now must come in during the sentencing phase. Ark. Code Ann. § 5-4-103 (Repl. 1997). I concur in the decision that this case must be reversed and remanded for a new trial.