{ "id": 1719916, "name": "Otha Lee CONLEY v. STATE of Arkansas", "name_abbreviation": "Conley v. State", "decision_date": "1979-11-07", "docket_number": "CA CR 79-45", "first_page": "713", "last_page": "723", "citations": [ { "type": "official", "cite": "267 Ark. 713" }, { "type": "parallel", "cite": "590 S.W.2d 66" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "262 Ark. 407", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675831 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0407-01" ] }, { "cite": "257 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718349 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/257/0144-01" ] }, { "cite": "262 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675872 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0320-01" ] }, { "cite": "196 S.W. 816", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "130 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718126 ], "opinion_index": 0, "case_paths": [ "/ark/130/0111-01" ] }, { "cite": "243 Ark. 55", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717704 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0055-01" ] }, { "cite": "497 F. 2d 1123", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 174498 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/497/1123-01" ] }, { "cite": "255 Ark. 378", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720840 ], "weight": 2, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ark/255/0378-01" ] }, { "cite": "248 Ark. 1223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597558 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "1232" } ], "opinion_index": 0, "case_paths": [ "/ark/248/1223-01" ] }, { "cite": "251 Ark. 1117", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "77 A.L.R. 2d 841", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1961, "opinion_index": 1 }, { "cite": "356 N.E. 2d 999", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "42 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2638678 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/ill-app-3d/42/0876-01" ] }, { "cite": "304 So. 2d 617", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1741070, 9627695 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ala-app/54/0062-01", "/so2d/304/0617-01" ] }, { "cite": "54 Ala. App. 62", "category": "reporters:state", "reporter": "Ala. App.", "case_ids": [ 1741070 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ala-app/54/0062-01" ] }, { "cite": "451 P. 2d 387", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10569322 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/p2d/451/0387-01" ] }, { "cite": "212 Tenn. 464", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8528713 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/tenn/212/0464-01" ] }, { "cite": "110 Ariz. 106", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 617892 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/ariz/110/0106-01" ] }, { "cite": "277 So. 2d 13", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9728355 ], "year": 1973, "opinion_index": 1, "case_paths": [ "/so2d/277/0013-01" ] }, { "cite": "348 So. 2d 1206", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9716452, 9716383 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/so2d/348/1206-02", "/so2d/348/1206-01" ] }, { "cite": "23 Ariz. App. 518", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1240784 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/ariz-app/23/0518-01" ] }, { "cite": "328 So. 2d 311", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9650326 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/so2d/328/0311-01" ] }, { "cite": "57 Ala. App. 310", "category": "reporters:state", "reporter": "Ala. App.", "case_ids": [ 428049 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/ala-app/57/0310-01" ] }, { "cite": "250 N.W. 2d 443", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1976, "pin_cites": [ { "page": "450" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 891, "char_count": 16891, "ocr_confidence": 0.901, "pagerank": { "raw": 5.8157529116814025e-08, "percentile": 0.36210354348844276 }, "sha256": "cd11eb8f7bcec56f54e8e12689dde8305f08d707746cbfdfbeb9a858d4636a22", "simhash": "1:6f68b631b327cf83", "word_count": 2908 }, "last_updated": "2023-07-14T22:44:49.696704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Penix, J., concurs." ], "parties": [ "Otha Lee CONLEY v. STATE of Arkansas" ], "opinions": [ { "text": "James H. Pilkinton, Judge.\nAppellant was charged with burglary and rape in violation of Ark. Stat. Ann. \u00a7 41-2002 and 41-1803 respectively. He was found guilty by a jury on both charges. Punishment was fixed at three years imprisonment for burglary and twenty years for rape. The sentences were directed to be consecutive. Appellant brings this appeal from the judgment and sentence imposed by the Pulaski County Circuit Court.\nI.\nAppellant made a statement to police after his arrest. A pretrial hearing was held and the trial court granted appellant\u2019s motion to suppress the statement on the grounds that (1) the state failed to have present at the hearing all of the witnesses who were present at the time the statement was made, and (2) that the appellant had requested his attorney be present at the time of the statement, and his attorney was not there. In accordance with the trial court\u2019s ruling, the prosecution was not permitted to introduce the statement as a part of its evidence in chief. Later during the trial when the defendant took the stand to testify in his own defense, and denied making the statement to police, another in-chambers hearing was conducted. The trial court then held that the state would be allowed to introduce evidence of the statement in question for the limited purpose of impeaching the credibility of the appellant. This was done, and appellant made no objection. However, appellant now urges that the trial court erred in failing to give a specific jury instruction as to the limited purpose for which the statement could be considered.\nThe record reflects that discussions concerning the nature and content of the jury instructions, occurred at several intervals during the trial. The first such discussion took place after the state had rested, and before the defense had begun to put on its case. At that time, all of the instructions which had been submitted by both sides were reviewed, and the trial court told the attorneys which ones would be given. The only instruction with regard to credibility of witnesses which had been submitted at that time was adopted by the judge as Court\u2019s Instruction No. 5, which was the usual one on credibility of the witnesses, and of the weight that should be given to their testimony. Both sides approved this instruction. Later at the in-chambers hearing held during the presentation of the defense\u2019s case when the judge decided to allow the state to use the appellant\u2019s prior statement for the purpose of attacking his credibility, the following discussion occurred:\nMR. ACHOR: That\u2019s right. He says he didn\u2019t tell the policeman that. He says he told the policeman the same thing he told here. Now, you have already ruled that it\u2019s inadmissible as an involuntary statement.\nTHE COURT: As to the merits of the statement but not as to his credibility.\nMR. ACHOR: I think with this we will need another instruction. We might as well get it straight right now.\u2014 that this was not for the purpose of proving the truth of this statement.\nThat is all that was said by counsel for appellant concerning the limited instruction. Nor was there ever any further attempt by appellant, either at the time the state offered the evidence in question, or at the time when the instructions were ready to the jury, to have a limiting instruction given. At the close of the case for the defense, and after both sides had rested, the record reveals the following:\nTHE COURT: (in chambers) Are you ready to charge this jury and read instructions to them?\nMR. HALL: Yes, your Honor.\nTHE COURT: Anything else, gentlemen?\nMR. ACHOR: No, sir.\nImmediately later in the courtroom, the following occurred:\nTHE COURT: Both sides rest?\nMR. HALL: (for state) Yes, sir.\nMR. PATTERSON: (for defense) Yes, your Honor.\nTHE COURT: Are you ready for me to instruct the jury?\nMR. PATTERSON: Yes, your Honor:\nMR. HALL: Yes, sir.\nAppellant contends that the statement of defense counsel, quoted above, to the effect that I think we will need another instruction, etc., constituted an adequate offer of a limiting instruction. We do not agree. Rule XIII of the Uniform Rules for Circuit and Chancery Courts (251 Ark. 1117) provides:\nNo party may assign as error the giving or the failure to give an instruction to a jury unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection.\nSuffice to say that appellant made no objection to the instructions as given by the court, nor did he offer a proper limiting instruction. The purpose of requiring objections is to give the trial court an opportunity to correct any error or omission on its part. Griffin v. State, 248 Ark. 1223 at 1232, 455 S.W. 2d 882 (1970). Clearly no limiting instruction was ever submitted to the trial court by appellant; thus, under the circumstances here, there was no. error in the trial court\u2019s failure to give such an instruction. Perry v. State, 255 Ark. 378, at 384, 500 S.W. 2d 387.\nII.\nIt is next contended the trial court should have granted appellant\u2019s motion for a mistrial when the prosecuting attorney allegedly allowed the \u2018 \u2018rap sheet\u2019 \u2019 on the defendant to be seen by the jury. The record reveals that the prosecutor asked the defendant whether the one robbery conviction he had testified to was his only felony conviction and whether he had been to prison only one time. At that point, according to the record, the state\u2019s attorney approached the defense table, apparently to hand appellant\u2019s counsel a sheet of paper that was only later identified (after the jury had been removed), as a \u201crap sheet.\u201d\nIf any particular attention was called to this piece of paper, it was the result of the action of defense counsel. As the prosecutor approached\u2018the defense table to hand the public defender a copy of the sheet, the following occurred:\nMR. ACHOR: (Counsel for appellant) I don\u2019t want to see that. I see that certified copy you got there. I see you got something there with a seal on it.\nTHE COURT: Gentlemen, if you are going to discuss something \u2014\nMR. ACHOR: Judge, may we approach the bench?\nAt this point counsel for both sides approached the bench, and conferred with the court out of the hearing of the jury, as follows:\nMR. ACHOR: I would like to move for a mistrial, him flashing that before the jury.\nThe court had the jury taken out of the courtroom, and the matter was further discussed. The court then made the following statement:\nAll right, gentlemen, the record is complete at this time. The court finds that the defense raised the question of his prior conviction. The court further finds that Mr. Bentley asked him and he admitted the robbery, as he did on direct. He asked him if that was all, if there were any others, and he said, \u201cNo.\u201d So far as the jury knows, that is all. There was some discussion, probably inaudible, from the defense counsel and from the prosecutor which was initiated by both counsel, and defense was as culpable in it as the prosecutor.\nI do not think that this jury has heard or seen anything that can be detrimental to this man\u2019s right to have a fair trial. I will overrule the motion for a mistrial.\nThere was a question of fact presented as to whether or not the sheet was seen by the jury, or the comments of counsel overheard. The trial judge resolved the issue against appellant. Parrott v. Arkansas, 497 F. 2d 1123 (8th Cir. 1974). The facts here are entirely different from those in Shaddox v. State, 243 Ark. 55, 418 S.W. 2d 780 (1967), and the other cases which appellant cites as authority for his contention that a mistrial shpuld have been granted. We find np merit in appellant\u2019s point II.\nIII.\nAppellant also claims that the trial court commented on the evidence, and his motion for a mistrial should have been granted. During the redirect examination of the prosecutrix, the following exchange occurred:\nBY MR. HALL, DEPUTY PROSECUTING ATTORNEY: How certain are you that the man sitting at the counsel table is the man who was with you that night?\nMR. ACHOR: Your Honor, this is not proper in the context of the trial. This would have been proper on direct but not now.\nMR. HALL: This is redirect.\nTHE COURT: Sustained.\nMR. HALL: Your Honor, I would like to point out that they brought up the question of identification.\nTHE COURT: Mr. Hall, I\u2019m not sustaining it for the reason Mr. Achor says. I\u2019m sustaining it because the lady has identified the man sitting at the counsel table as the assailant.\nOut of the hearing of the jury the public defender moved for a mistrial which was denied.\nTHE COURT: I just said what the witness has testified to, Mr. Achor. Overruled.\nThe remark of the trial court here was merely a restatement of the witness\u2019s testimony. Consequently, it did not constitute a comment on the evidence in violation of Article 7, Section 23 of the Arkansas Constitution, as appellant claims. See Lisko v. Uhren, 130 Ark. 111, 196 S.W. 816.\nIV.\nThe issue raised by appellant in his final point for reversal concerns an incident which occurred at the beginning of the voir dire of the jury. After the jury panel was sworn, the court introduced the attorneys and the defendant to the prospective jurors. Then the judge had the witnesses to be identified by name, and asked the panel if any juror knew any of these witnesses. Two other rape victims were included by the state as possible witnesses. As it later developed, the court did not permit the state to use these two witnesses, and that matter is the subject of the cross appeal in this case. Appellant contends the introduction to the jury panel of the other two alleged rape victims, as possible witnesses, was error and that the court should have granted his motion to strike the whole jury panel.\nThe record does not indicate that the prospective jurors were ever informed as to what relationship the two had to the case. They were introduced by name only, and then put under the rule. No prejudice to the defendant could have resulted from this incident, particularly when no final ruling had been made by the court on the eventual admissibility of their testimony. If appellant was prejudiced by what happened here, then conceivably every prosecutor would risk reversal when he attempts during voir dire to determine whether any member of the panel is acquainted with any of the potential witnesses before knowing whether their testimony will be necessary or admissible.\nAppellant cites Sharron v. State, 262 Ark. 320, 556 S.W. 2d 438 (1977) as support for his argument that reversal on this point is required. The facts in Sharron were entirely different, and that case is clearly distinguishable from the one before us. Appellant\u2019s argument on this point lacks validity.\nTHE CROSS APPEAL\nAt the conclusion of the trial, the state sought to put the other alleged victims on in rebuttal to the defendant\u2019s claim of consent by the victim in the case being tried. The state made a proffer and the court excluded it as too prejudicial. This cross appeal is from the trial court\u2019s rejection of the proof of other crimes under U.R. Evid. 404(b). Since this case is being affirmed on direct appeal, little need be said about the cross appeal. The Arkansas Supreme Court has already ruled that evidence of other crimes is admissible for limited purposes. A decision on the cross appeal in this case is not necessary to the uniform administration of criminal law. It is clear that the admissibility of relevant evidence under Rule 404(b) of the Uniform Rules of Evidence may be decided on a case by case basis. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79 (1974) and Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977).\nFinding no error, this case is affirmed on direct and cross appeal.\nPenix, J., concurs.", "type": "majority", "author": "James H. Pilkinton, Judge." }, { "text": "Marian F. Penix, Judge,\nconcurring. I concur with the majority in affirming the defendant\u2019s conviction, but I would grant the cross-appeal.\nRape is a crime unlike all others in that proof of consent is an absolute defense. Even where two consenting adults enter into a double suicide pact and they both willingly die, society rejects the consent and we call it a \u201cmurder-suicide\u201d.\nBefore our legislature wisely eliminated an attack on the character of the female victim as evidence, many rape trials consisted primarily of an effort to picture the female as a person whose wanton sexual activities of the past made her fair game for the male defendant, and, whatever ensued was of minor significance.\nExcept for attacks upon young male inmates of penitentiaries, rape almost exclusively is a problem of the female. Its victims may be eight years of age, or eighty, attractive or homely, brash or shy, and of.all races, creeds and strata of society. Sadly, the occurrence of this crime continues to increase in Little Rock, in Arkansas, and over the nation.\nThe writer of this opinion dares not work in her office when the Justice Building is empty because she\u2019s unwilling to subject herself to the danger of rape. No male opinion writer is ever faced with this sinister problem.\nIn this case the female victim testified she was awakened by the defendant standing over her bed and threatening her with a knife if she didn\u2019t submit to his sexual assault upon her. Defendant testified the female had been lonely and invited him to her home and consented to the sexual relationship.\nHere, a male defendant says the prosecuting witness, who alleges she was raped, actually consented.\nThe fact to be established, non-consent, is crucial in a rape case . . . Often the more serious problem is proving non-consent. . . Absent a physical struggle resulting in bruises or lacerations, such resistance is often difficult to prove . . . Certainly, the fact that an individual commits a rape at one time has no bearing on whether another consented to intercourse at a later time. Here, however, the People did not offer the prior acts to prove prior rapes, or that the defendant is a bad man with criminal propensities. The People offered the prior acts to shown the scheme, plan or system employed by the defendant in raping the complainant . . . People v. Oliphant, 250 N.W. 2d 443 at 450 (Mich. 1976).\nSee also Fisher v. State, 57 Ala. App. 310, 328 So. 2d 311 (1976); State v. Valdez, 23 Ariz. App. 518, 534 P. 2d 449 (1975); Pendleton v. State, 348 So. 2d 1206 (Fla. 1977); Dean v. State, 277 So. 2d 13 (Fla. 1973). In this case three other females were willing to undergo embarrassment and humiliation and describe the details of sexual assaults upon them by this same defendant in the same eight-week period in the same neighborhood and in much the same manner. This indeed was relevant to the defendant\u2019s intent in the trial at hand. Such evidence should have been allowed after an adequate precautionary instruction limiting consideration of the evidence to show the defendant\u2019s motive, intent, knowledge, or absence of mistake. Ark. Stat. Ann. \u00a7 28-1001 (Supp. 1977) Rule 404(b). McCormick, Evidence \u00a7 190, at 448-51 (2d ed. 1972); State v. Thomas, 110 Ariz. 106, 515 P. 2d 851 (1973); Carroll v. State, 212 Tenn. 464, 370 S.W. 2d 523 (1963); Turnbow v. State, 451 P. 2d 387 (Okla. Crim. 1969); Humphrey v. State, 54 Ala. App. 62, 304 So. 2d 617 (1974); People v. Therriault, 42 Ill. App. 3d 876, 356 N.E. 2d 999 (1976). See Louisell & Mueller, Federal Evidence \u00a7 140 (1978); Annot., Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 77 A.L.R. 2d 841 (1961).\nWhen Patty Hearst said she participated in a bank robbery only because she was under duress the court allowed evidence of her willing participation in a later robbery to rebut this female accused\u2019s claim of duress in the earlier robbery. U.S. v. Hearst, 563 Fed. 2d 1331 (1977)\nAppellant raised the defense of duress at trial and offered substantial evidence to support it. To convict appellant, therefore the government was required to show appellant was not acting under duress when she participated in the San Francisco robbery. The evidence of appellant\u2019s involvement in the Los Angeles activity was relevant to this issue because it tended to show appellant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote, p. 1336.\nIt may well be that the ultimate precedent on this point should come from our Supreme Court under its Rule 29.\nI would grant the cross-appeal and admit the excluded evidence of nearly identical assaults on other females which are close in time and location to the case being tried.", "type": "concurrence", "author": "Marian F. Penix, Judge," } ], "attorneys": [ "Robert A. Newcomb, for appellant and cross-appellee.", "Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., and John Wesley Hall, Jr., for appellee and cross-appellant." ], "corrections": "", "head_matter": "Otha Lee CONLEY v. STATE of Arkansas\nCA CR 79-45\n590 S.W. 2d 66\nOpinion delivered November 7, 1979\nPetition for Review denied December 3, 1979\nReleased for publication December 5, 1979\nRobert A. Newcomb, for appellant and cross-appellee.\nSteve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., and John Wesley Hall, Jr., for appellee and cross-appellant." }, "file_name": "0713-01", "first_page_order": 777, "last_page_order": 787 }