{ "id": 6653040, "name": "James RICHARDSON v. STATE of Arkansas", "name_abbreviation": "Richardson v. State", "decision_date": "1991-02-06", "docket_number": "CA CR 90-101", "first_page": "128", "last_page": "133", "citations": [ { "type": "official", "cite": "33 Ark. App. 128" }, { "type": "parallel", "cite": "803 S.W.2d 557" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "6 Ark. App. 85", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137813 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "discussing the importance of impeachment evidence when credibility is a crucial factor" }, { "parenthetical": "discussing the importance of impeachment evidence when credibility is a crucial factor" } ], "opinion_index": 0, "case_paths": [ "/ark-app/6/0085-01" ] }, { "cite": "27 Ark. App. 46", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136747 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/27/0046-01" ] }, { "cite": "756 S.W.2d 455", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1892752, 1892785 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0302-01", "/ark/296/0299-01" ] }, { "cite": "296 Ark. 299", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892785 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0299-01" ] }, { "cite": "278 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748324 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0342-01" ] }, { "cite": "625 S.W.2d 471", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1755004 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0379-01" ] }, { "cite": "214 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721289 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/214/0379-01" ] }, { "cite": "469 U.S. 38", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11958370 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0038-01" ] }, { "cite": "300 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886871 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0330-01" ] }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "278 Ark. 305", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748304 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0305-01" ] }, { "cite": "301 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885569 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ark/301/0208-01" ] }, { "cite": "277 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750224 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0117-01" ] }, { "cite": "290 Ark. 375", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873720 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0375-01" ] }, { "cite": "299 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888350 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ark/299/0266-01" ] } ], "analysis": { "cardinality": 557, "char_count": 10659, "ocr_confidence": 0.841, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1795000403498428 }, "sha256": "dc82d2e969ce76c306e0f0d78771d39f068e5b1d8e33097c5a71d555f07c9ab0", "simhash": "1:470eb4244b0e9bda", "word_count": 1811 }, "last_updated": "2023-07-14T21:06:58.749715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J., and Rogers, JJ., agree." ], "parties": [ "James RICHARDSON v. STATE of Arkansas" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nAppellant James Richardson was convicted by a jury of the crime of rape and sentenced to ten years in the Arkansas Department of Correction.\nPrior to trial, appellant filed a motion in limine asking that the \u201ccomplaining witness\u201d be prohibited from testifying, and that the \u201cProsecutor and prosecution witnesses\u201d be prohibited from testifying concerning any prior convictions of the appellant. At a pretrial hearing held immediately before trial, appellant challenged the competency of the complaining witness (the victim) to testify due to lack of mental capacity and lack of ability to comprehend truth from falsehood. After hearing testimony from the victim and another witness, the trial court held that the victim \u201cunderstands the obligation of the oath\u201d and permitted her to testify.\nOn appeal the appellant first argues the court erred in allowing the victim to testify at the trial. Appellant contends the victim admitted she did not comprehend the difference between the truth and a lie; that she did not comprehend the obligation of the oath or the consequences of false swearing; and that she was merely \u201cparroting\u201d responses which she had learned would please the questioner. Appellant then points to the pretrial testimony of the other witness, a licensed professional counselor, who administered tests to the victim and testified they showed the victim had an intelligence quotient of 45 or 50. The counselor also testified she could not say whether the victim could comprehend the difference between truth and falsity.\nIn Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989), the appellant, who worked at a school for developmentally handicapped children, was convicted of seven counts of rape by deviate sexual activity. At trial he challenged the competency of the victims to testify, and the trial court held six of the seven victims were competent. In affirming the trial court\u2019s ruling, the Arkansas Supreme Court said:\nA trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982).\n299 Ark. at 272. And in Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990), in affirming the trial court\u2019s holding that a young victim could testify, our supreme court said:\nWhile it is true that the victim stated that she did not know what a lie was, nor what happens to a person when they tell a lie, her overall testimony showed her ability to understand the obligation of an oath and the consequences of false swearing. We cannot say that the judge abused his discretion in refusing to declare the witness incompetent.\n301 Ark. at 213.\nHere, the 14-year-old victim did tell the trial judge that she did not know what it means \u201cto state you will tell the truth,\u201d but she said she would be in trouble if she did not tell the truth. Although she said that you can also get into trouble if you tell the truth, she said that a lie will \u201cget you in the most trouble.\u201d The professional counselor\u2019s training was in the educational field rather than psychology, and she said the tests could be interpreted as showing the victim had a mental age of around six years. She also said she was not trained to make an assessment of whether someone could tell the difference between the truth and a lie. Giving due regard to the trial judge\u2019s superior ability to observe the victim, we cannot say he abused his discretion in finding her competent to testify.\nAppellant next argues the trial court erred by improperly withholding its ruling on appellant\u2019s motion in limine regarding the admissibility of evidence of appellant\u2019s prior conviction. Appellant argues the trial court violated the guidelines set out in Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, cert. denied 464 U.S. 865 (1983), and that he was forced to make the decision to testify not knowing whether the court would admit evidence of a prior conviction.\nAt the pretrial hearing held immediately before trial it was disclosed that appellant had a prior conviction which involved the sexual abuse of a sibling of the victim. At that time, the trial judge said prior convictions could be used for impeachment if the prejudicial value did not outweigh the probative value of the evidence, but said he was withholding any ruling until the appellant testified. Then, after the state rested, defense counsel renewed his motion to exclude the prior conviction, and the judge said he could not rule at that time because he did not know \u201cthe context in which it will arise.\u201d The appellant then elected to testify and when the prosecuting attorney got to the point on cross-examination where he wanted to ask a question about the prior conviction he asked the trial court to rule on appellant\u2019s motion. In chambers, the court specifically found that the probative value of the evidence of the prior conviction outweighed its prejudicial effect and held the prior conviction evidence admissible.\nWe think the appellant\u2019s argument as to the trial court\u2019s failure to follow the guidelines set out in Simmons v. State is misplaced. In Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989), the court said it was extending the Simmons rule and \u201cnow adopt the doctrine promulgated in Luce v. United States, 469 U.S. 38 (1984), which states that in order to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.\u201d The court said one reason it was necessary for the defendant to testify was because the reviewing court could not otherwise weigh the probative value of the impeachment evidence against its prejudicial effect. While the court also said the new rule would apply prospectively only, that opinion was handed down on November 6, 1989, and the present case was tried on December 12, 1989. Thus, under the rule in Smith, the trial court was not in error in waiting to rule on appellant\u2019s motion until he had testified.\nIt is also argued that the trial court erred in allowing the state to show the nature of the prior conviction where it was of a similar nature to the charge on which appellant was being tried. Appellant cites Jones v. State, 214 Ark. 379, 625 S.W.2d 471 (1981), where the Arkansas Supreme Court discussed Ark. R. Evid. 609(a)(1) which provides \u201cfor the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime [punishable by death or imprisonment in excess of one year] shall be admitted [if] the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness. . . .\u2019\u2019The court held that under that rule evidence of a prior conviction of rape involving a little boy was not admissible to impeach the credibility of the defendant in that case where he was on trial for the sexual abuse of another young boy. The court said the prior conviction was not admissible because its prejudicial effect would outweigh its probative value. The court pointed out that there were two previous convictions for burglary and theft that could be used to impeach credibility and \u201cproof of still a third conviction, for a similar assault upon a little boy, would have been of scant probative value as compared to its significantly prejudicial effect on the jury.\u201d\nThe Jones case, supra, was discussed in Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983), also cited by appellant, where the court said that Rule 609(a)(1) grants the trial court discretionary power to determine whether the probative value of the evidence of the prior felony conviction outweighs its prejudicial effect. The court said this provision was applied in Jones, where the appellant court held the evidence inadmissible, but the question involved had to be decided on a case by case basis. In Floyd, the appellate court said \u201cwhen an accused, or a witness, takes the stand he may be asked on cross-examination how many times he has been convicted, within the applicable restrictions set forth under Rule 609.\u201d\nMany cases have dealt with this rule of evidence, but it would probably serve no useful purpose to review them in detail. In Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988), the court said: \u201cIn determining the admissibility of such evidence, the trial court has wide discretion, and we will not reverse absent an abuse of discretion.\u201d 296 Ark. at 301. Also, in Sims v. State, 27 Ark. App. 46, 766 S.W.2d 20 (1989), we listed some factors that should be considered by the trial court in determining whether the probative value of the prior conviction outweighs its prejudicial effect to a party or witness. See also Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982) (discussing the importance of impeachment evidence when credibility is a crucial factor).\nIn the instant case, we do not think the trial court abused its discretion in admitting the evidence of appellant\u2019s previous conviction. Some factors which support that decision are (1) while it was shown the prior conviction was for statutory rape, it was not shown that it involved a sibling of the victim in this case, (2) the jury was instructed in the words of AMCI203 that a prior conviction could only be used for the purpose of judging credibility and not as evidence of guilt, (3) the importance of appellant\u2019s credibility in this case where there were only two witnesses who knew what happened, and (4) the appellant\u2019s testimony that he had been alone in the house with the victim on many other occasions, from which the jury might infer that \u201cnothing ever happened before.\u201d\nAffirmed.\nCracraft, C.J., and Rogers, JJ., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Lynn Frank Plemmons, for appellant.", "Steve Clark, Att\u2019y Gen., by: Theodore Holder, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "James RICHARDSON v. STATE of Arkansas\nCA CR 90-101\n803 S.W.2d 557\nCourt of Appeals of Arkansas Division I\nOpinion delivered February 6, 1991\nLynn Frank Plemmons, for appellant.\nSteve Clark, Att\u2019y Gen., by: Theodore Holder, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0128-01", "first_page_order": 150, "last_page_order": 155 }