{ "id": 8723709, "name": "Lois CLARK v. STATE of Arkansas", "name_abbreviation": "Clark v. State", "decision_date": "1974-05-28", "docket_number": "CR 74-17", "first_page": "658", "last_page": "662", "citations": [ { "type": "official", "cite": "256 Ark. 658" }, { "type": "parallel", "cite": "509 S.W.2d 812" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "75 S.W. 584", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1903, "opinion_index": 0 }, { "cite": "71 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507885 ], "year": 1903, "opinion_index": 0, "case_paths": [ "/ark/71/0415-01" ] }, { "cite": "205 Ark. 1075", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488292 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/205/1075-01" ] }, { "cite": "227 Ark. 777", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705361 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/ark/227/0777-01" ] }, { "cite": "341 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1148003 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/us/341/0479-01" ] }, { "cite": "249 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717425 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/249/0017-01" ] }, { "cite": "240 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727672 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0097-01" ] }, { "cite": "246 Ark. 963", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604125 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0963-01" ] }, { "cite": "142 U. S. 547", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3557472 ], "year": 1892, "opinion_index": 0, "case_paths": [ "/us/142/0547-01" ] }, { "cite": "349 U. S. 155", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334163 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/us/349/0155-01" ] }, { "cite": "251 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633251 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/251/0046-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "246 Ark. 479", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604180 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0479-01" ] }, { "cite": "280 S.W. 982", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1926, "opinion_index": 0 }, { "cite": "170 Ark. 709", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371695 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/ark/170/0709-01" ] }, { "cite": "64 S.W.2d 328", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1933, "opinion_index": 0 }, { "cite": "188 Ark. 133", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428405 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ark/188/0133-01" ] }, { "cite": "380 U. S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "384 U. S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 560, "char_count": 8542, "ocr_confidence": 0.912, "pagerank": { "raw": 3.4254614642858396e-07, "percentile": 0.8788537478439863 }, "sha256": "49e8f6204d1d09735408533d22810448635a91acde78056516f8b565beede34e", "simhash": "1:636cec29b6ceab95", "word_count": 1432 }, "last_updated": "2023-07-14T14:44:14.527021+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lois CLARK v. STATE of Arkansas" ], "opinions": [ { "text": "Frank Holt, Justice.\nAppellant was charged with first degree murder and a jury convicted her of voluntary manslaughter in the stabbing death of her husband as the result of a domestic fight. The jury imposed a seven year sentence. For reversal appellant contends that a mistrial should have been granted due to prejudicial statements of the prosecutor in his opening statement, the pertinent part of which reads:\nyou notice, I\u2019m here by myself, and this vacant chair. He might be here to tell his side but he\u2019s not here. The story then that you will have about what happened out there will come from her. ...\u201d\nAt this time the appellant\u2019s counsel moved for a mistrial, stating in part:\n****I warned him not to tell the jury that she would testify. . . . [T]he prosecutor has no right to put the burden on the defendant to take the stand except by evidence and he certainly has no right and it\u2019s highly improper and highly prejudicial for him to tell the jury that the story in this case is going to come from the defendant and he turned and pointed to the defendant when he said so and I object and I move for a mistrial.\nThe court denied appellant\u2019s motion for a mistrial. Appellant contends that the above remark compelled her to testify when she would not otherwise have done so. Appellant\u2019s counsel expressly stated before appellant testified that she was not waiving her objection to the opening statement and motion for a mistrial. We must consider the contention under the requirements of the Fifth Amendment of the United States Constitution which states \u201c. . . . no person .... shall be compelled in any criminal case to be a witness against himself. . ...\u201d as well as our state constitutional equivalent, Ark. Const., Art. 2, \u00a7 8 (1874), and our statutory provision, Ark. Stat. Ann. \u00a7 43-2016 (Repl. 1964), which reads:\nOn the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses and misdemeanors in the State of Arkansas, the person so charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.\nThe privilege articulated in the Fifth Amendment finds its origin and can be traced back to the thirteenth century. Miranda v. Arizona, 384 U. S. 436, 458 n. 27 (1966). The enlightening history of the rule is concisely reviewed in McCormick on Evidence \u00a7\u00a7 115-118 (2d. Ed. 1972). See also 8 Wigmore on Evidence, \u00a7 2250 (McNaughton Rev. 1961). According to these authorities, the popularity of the privilege against self-incrimination in England sprang from the impact of the ecclesiastical courts and the courts of the Star Chamber and High Commission. Torture attended the victim-defendant\u2019s interrogation and his compulsory testimony became the vehicle for the rise of dictatorial Kings and the suppression of religious diversity. The common law courts responded with the theory that it was inherently improper to compel testimonial response by the accused to charges against him. The privilege was transplanted and continued by our American colonies as a part of our legal heritage and was inserted in the constitution or bill of rights of seven of the American States by 1789 and was adopted in the U. S. Constitution in 1791 as the Fifth Amendment and, as indicated in our own state constitution.\nWe are, of course, controlled by the federal requirements of the Fifth Amendment as well as our own similar constitutional and statutory provisions. Part of the requirements of the federal amendment demand that the prosecution not comment on the defendant\u2019s failure to testify. See Griffin v. California, 380 U. S. 609 (1965), where it was error for the prosecutor to argue:\nThese things [details of the alleged murder] he has not seen fit to take the stand and deny or explain. . . . Essie Mae is dead, she can\u2019t tell you her side of the story. The defendant won\u2019t.\nAccord, Perry v. State, 188 Ark. 133, 64 S.W.2d 328 (1933), where the prosecutor argued that \u201c. . . .the defendant has not denied a single, solitary iota of evidence that has been given against him from the stand here today,\u201d and Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926), where the prosecutor remarked that the defendant had not denied drinking that day. Cf., Stout v. State, 246 Ark. 479, 438 S.W.2d 698 (1969).\nA comment on defendant\u2019s failure to testify may not require reversal, but before such a comment can be harmless error, the court must determine that it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). For example, we have held that a prosecutor\u2019s comment concerning defendant\u2019s failure to take the stand was harmless where the trial court determined that none of the jurors heard the remark. Powell v. State, 251 Ark. 46, 471 S.W.2d 333 (1971). At all times, however, the court must accord a liberal construction to effectuate the purpose the privilege was designed to secure. Quinn v. United States, 349 U. S. 155 (1955) and Counselman v. Hitchcock, 142 U. S. 547 (1892).\nWe have held that it is error, over defendant\u2019s objection, to give an instruction that defendant\u2019s failure to testify is not to be considered by the jury. Mosby & Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969) and Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966). Even such a neutral comment on defendant\u2019s silence should not be given over his objection. Similarly, we have held that it was error during voir dire for the court to promise an instruction at the close of the case concerning defendant\u2019s testimony or silence, absent a specific request for that instruction by defendant. Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970).\nTherefore, in applying the rationale of the Fifth Amendment and our own state constitution and statutory provision in the instant case, we certainly cannot say with confidence that the remark of the prosecutor did not to some extent compel the defendant to testify in her own behalf. It is fair to say that the remark resulted in pre-evidentiary coercion which is just as forbidden as is post evidentiary comment. Certainly we cannot say that the effect of the comment was harmless beyond a reasonable doubt. To the contrary, it is precisely the sort of coercive activity the Fifth Amendment is designed to prevent. The guarantee or privilege against self-incrimination \u201cmust be accorded liberal construction in favor of the right it was intended to secure.\u201d Hoffman v. U. S., 341 U.S. 479 (1951). The right to testify or remain silent is an absolute and \u201cunfettered\u201d right for a defendant only to exercise. Unless justified, the state should not comment in any manner upon that basic right in the opening as well as closing statement.\nEven if the remarks were not held to be constitutionally repugnant, the prosecutor\u2019s comment was not within the proper scope of the opening statement. The scope of the opening statement is limited to a \u201cbrief statement of the evidence on which the state relies, \u201d Ark. Stat. Ann. \u00a7 43-2110 (Repl. 1964), and the issues to be tried. Karr v. State, 227 Ark. 777, 301 S.W.2d 442 (1957). No asserted fact should be stated by the prosecutor unless it is material evidence on the part of the state. Smith v. State, 205 Ark. 1075, 172 S.W.2d 249 (1943). For example, where inadmissible evidence of alleged criminal reputations of defendants was referred to in an opening statement, we have reversed even over the cautionary instruction of the trial court. Marshall v. State, 71 Ark. 415, 75 S.W. 584 (1903). Our standards are the same as those of the A.B.A. Project on Minimum Standards for Criminal Justice. See, Standards Relating to the Prosecution Function and the Defense Function, The Prosecution Function \u00a7 5.5 (Approved Draft 1971).\nWe have carefully considered and find no merit in appellant\u2019s contentions that the court erred in allowing the prosecutor to cross-examine the defendant with respect to the shooting of appellant\u2019s previous husband or that the court erred in sustaining the prosecutor\u2019s objection to the relevancy of showing that the decedent was a bigamist for the purpose of determining who was the aggressor in the fatal affray.\nFor the error as indicated in the opening statement, the judgment is reversed and remanded.", "type": "majority", "author": "Frank Holt, Justice." } ], "attorneys": [ "Sam Sexton Jr., by: Jim D. Spears, for appellant.", "Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Lois CLARK v. STATE of Arkansas\nCR 74-17\n509 S.W.2d 812\nOpinion delivered May 28, 1974\nSam Sexton Jr., by: Jim D. Spears, for appellant.\nJim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee." }, "file_name": "0658-01", "first_page_order": 694, "last_page_order": 698 }