dissenting. I must respectfully dissent. While I agree with the majority that there is sufficient evidence to support the jury’s finding that Wal-Mart was negligent, I cannot agree with the majority’s holding that the expunged conviction of Mrs. Burkeen is admissible under Ark. R. Evid. 609(c) for purposes of impeachment in a civil trial. This holding is directly contrary to our holding in Steele v. State, 280 Ark. 51, 655 S.W.2d 381 (1983). There are two instances where an expunged conviction is admissible. Neither is applicable under the facts of this case. I find no basis for this court’s holding on admissibility of expunged convictions in the law of this State and find the foreign-jurisdiction analysis provided by the majority unconvincing.
In reading the majority opinion, I must conclude that the holding is based upon a failure of Mrs. Burkeen to use the correct words in drafting her order expunging and sealing her conviction. It appears this Court now holds exact wording in the order is required by Rule 609(c) before expungement is effective. I must note that expungement is granted by statute, not by the rules of this Court.
At issue is the following language from Rule 609(c): “Evidence of a conviction is not admissible if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based upon a finding of rehabilitation of the person convicted. ...” It seems abundantly clear from the plain language of this sentence that where a conviction has been expunged according to law it is inadmissible. This court, however, cites to Steele, supra, in finding confusion where there is none. In Steele, this court held that the evidence of the conviction was properly excluded because the “[tjrial court found that he had been rehabilitated prior to entry of the order of expungement.” Steele, 280 Ark. at 53. Basing its decision on the literal language of the opinion in Steele, the majority finds meaning and direction from the opinion in Steele where none was intended. Relying on specific words used in the Steele opinion, the majority holds in the present case that because “[n]o such finding [of rehabilitation] was made in the instant case,” the conviction was admissible even though it had been expunged. It is true that the word “rehabilitation” does not appear in the order in Mrs. Burkeen’s case, but neither does it appear in the order in Steele. The majority reads more into the opinion in Steele than is to be found there. The court in Steele stated, “The order stated that LaFerney had met all the terms and conditions of the earlier order and had in fact been a model citizen.” Steele, 280 Ark. at 52.
The word “rehabilitation” does not appear in the order expunging the witness’s conviction in Steele. The Court just used the word “rehabilitation” in its opinion in characterizing that the terms and conditions of the earlier order had been met. The order in Steele provides in pertinent part “that the defendant has met all conditions pursuant to said plea and the behavior of the defendant since January 26, 1978, has been exemplary and the defendant has conducted himself as a model citizen.” The order regarding Mrs. Burkeen provided more simply in pertinent part, “[t]hat the Court now finds that the Defendant has satisfactorily complied with the orders of this Court, and the Petition to Expunge and Seal should be granted.” It is apparent that in both cases the defendants had done what the court required of them when they were convicted under a statute allowing later expungement, and that both had complied and received expungement as provided under the statute.
What we are engaged in is a discussion of who drafted the better order. The order in Steele was certainly more extensive, but no more effective than the order in this case, and neither order used the word “rehabilitation.” What is at issue is a hypertechnical definition of what Rule 609(c) requires. Arguments against hypertechnical interpretation by this court of its own rules has been the subject of other dissents. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993).
If we consider the expungement statute, this matter becomes more clear. The effect of expungement is set out in Ark. Code Ann. § 16-90-902 (Supp. 2001), wherein its provided:
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
I have found two instances where an expunged conviction is admissible in Arkansas. The present case fits into neither instance. The first instance is set out in the expungement statutes. Ark. Code Ann. § 16-90-901 (a) (3) provides that expungement does not apply to the case of a sexual offense as defined therein. The second instance is where the conviction is used to determine punishment as an habitual offender. McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998); Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984). Somewhat similarly to the use in enhancement of punishment of habitual offenders, Act 595 of 1995, approved March, 13, 1995, would also allow use of an expunged felony in proof of a felon in possession of a firearm; however, as noted in Ross v. State, 344 Ark. 364, 39 S.W.3d 789 (2001), this is still uncodified.
In holding in Gosnell, supra, that expunged felony convictions could be admitted for purposes of determining enhanced punishment, this court stated:
There is good reason to follow the basic rule of statutory interpretation in this instance. Every benefit extended by this statute is of the type to encourage the offender’s progress toward rehabilitation. That is, a reformed convict should be encouraged to apply for a job, to assert his civil rights, as by registering to vote or running for office, and to discharge a good citizen’s duty to appear as a witness without fear of unnecessary embarrassment. But there is no reason either to encourage him to commit another crime or to believe that the legislature intended to do so. The trial judge was right in refusing to read into the statute a provision that is simply not there and that would actually be contrary to the over-all legislative intent.
Gosnell, 284 Ark. at 301. In Gosnell, the court was considering expungement of a youthful offender, but the principle is the same in the present case even though it was an adult offender under a different statute.
Resort to federal cases and cases from foreign jurisdictions is unnecessary and confuses the issue further. Existing Arkansas law is determinative of the issue. Also, although as stated in the majority opinion, the wording of the federal rule and the rule in other States may be identical, that alone is not sufficient to resort to consideration of interpretation of those rules in their jurisdictions. The statutes and law at issue in this case are Arkansas law, while the precedent cited from the federal courts and foreign jurisdictions is based on wholly different law. Even where the statute in Georgia is similar, the precedent is not helpful because we have our own that controls. This court has already spoken on this issue:
The order stated that LaFerney had met all the terms and conditions of the earlier order and had in fact been a model citizen. The order provided that all charges were dismissed.
Therefore, we hold that the trial court correctly ruled that the expungement of the prior proceedings, whether it was a conviction or not, rendered such record inadmissible. The trial court found that he had been rehabilitated prior to the entry of the order of expungement. Rule 609(c) requires the court to refuse to allow a conviction which has been expunged, to be used for testing the credibility of a witness.
Steele, supra, 280 at 52-53. Wal-Mart wished to use the evidence to impeach Mrs. Burkeen. This court has declared an expunged conviction may not be used for that purpose. Steele, supra.
The majority also cites the United States House-Senate Conference Committee Report on Fed. R. Evid. 609(a) for the proposition that Fed. R. Evid. 609 was intended especially to provide for admission of prior crimes involving dishonesty and false statements because these are particularly probative of credibility. That should come as no great surprise to anyone, but discussion of paragraph (a) is not helpful. It simply further confuses the issue. Paragraph (a) of Rule 609 is not at issue. Paragraph (c) of Rule 609 is at issue, and this court’s holding is directly contrary to our holding in Steele, supra.
We are struggling with the use of specific words. As a general proposition, this court has declined to require “magic words.” Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980) (reversed on other grounds in Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998)). Curtis v. Patrick, 237 Ark. 124, 371 S.W.2d 622 (1963). Neither the order in Steele, nor the order in the present case even mentions rehabilitation. Both indicate that the conditions set out by the sentencing court were met, and the party was entitled to expungement. Under the holding of this court, expungement obtained under the same statute may or may not be effective. It depends on whether the order was worded just so to meet the new requirements of Rule 609(c), a rule of evidence, not a rule or statute affording expungement. The trial judge called it right — “expungement is expungement.” To find otherwise is to judicially nullify expungement provided for by statute in holding that although the legislature intended that the conduct is to be deemed to have never occurred, this court may declare that the conviction is revived by an evidentiary rule.
The majority also holds that because the conviction of Mrs. Burkeen was excluded in error, the trial court abused its discretion in excluding the audiotape of Mr. Burkeen. This was based on the premise that if the conviction was admissible, then so was the audiotape. The audiotape was of an interview of Mr. Burkeen where he was being asked about Mrs. Burkeen’s involvement in the activities that led to her conviction. Because I believe that the conviction was properly excluded, I would not find the trial court abused its discretion in excluding the audiotape. I would affirm on the trial court’s exclusion of Mrs. Burkeen’s conviction and the exclusion of the audiotape as well.
I would affirm.