{ "id": 8717371, "name": "Henry TIMMONS v. STATE of Arkansas", "name_abbreviation": "Timmons v. State", "decision_date": "1985-05-13", "docket_number": "CR 84-207", "first_page": "42", "last_page": "49", "citations": [ { "type": "official", "cite": "286 Ark. 42" }, { "type": "parallel", "cite": "688 S.W.2d 944" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "285 Ark. 363", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877672 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0363-01" ] }, { "cite": "272 Ark. 448", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174910 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0448-01" ] }, { "cite": "25 S.W. 279", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1894, "opinion_index": 0 }, { "cite": "58 Ark. 473", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329174 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/ark/58/0473-01" ] }, { "cite": "246 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604174 ], "weight": 2, "year": 1969, "opinion_index": 2, "case_paths": [ "/ark/246/0494-01" ] }, { "cite": "270 Ark. 496", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709165 ], "weight": 2, "year": 1980, "opinion_index": 2, "case_paths": [ "/ark/270/0496-01" ] } ], "analysis": { "cardinality": 579, "char_count": 11784, "ocr_confidence": 0.84, "pagerank": { "raw": 2.154549016668905e-07, "percentile": 0.7690529447855841 }, "sha256": "3bb909cd982a83e6e329be06327bdb42b98626ae632a4aaca956f90ca9a71890", "simhash": "1:ba88151c2766d780", "word_count": 2034 }, "last_updated": "2023-07-14T20:29:09.553890+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hickman, J., concurs.", "Hays, J., dissents." ], "parties": [ "Henry TIMMONS v. STATE of Arkansas" ], "opinions": [ { "text": "John I. Purtle, Justice.\nThe appellant was convicted of rape [Ark. Stat. Ann. \u00a7 41-1803 (Repl. 1977)] and sentenced to 60 years imprisonment. On appeal he argues the prosecuting attorney engaged in prejudicial tactics and arguments during the course of the trial. We agree with appellant\u2019s argument and reverse and remand.\nThe appellant attended a party at the victim\u2019s house. According to the victim the appellant returned to her residence after the other guests had left and repeatedly raped her. She further testified that when she ran from the house to escape he overtook her and raped her several more times. One witness called by the state during the trial was a forensic serologist with the state crime laboratory. The doctor who examined the victim did not testify at the trial. At a pretrial conference, it was agreed by the state and the appellant that the serologist witness could not connect the chain of custody about the materials she had examined. During the trial, the state called the witness and the appellant objected to her testimony. At that point the state again admitted that it could not establish the chain of custody. Over the objection of appellant the state asked: \u201cDid you have an occasion to examine some items submitted to you from [the prosecuting witness] ?\u201d The court then sustained the objection. A request for a mistrial was denied.\nDuring the closing argument the state\u2019s attorney stated he had put the serologist witness from the crime lab on the stand and the appellant had objected to her testimony. He also referred to her testimony. The court instructed the jury not to consider the statement by the state\u2019s attorney about a witness who did not testify.\nThe question to be decided is whether it is prejudicial to allow the state to call a witness to the stand when it is already known that the witness cannot give valid relevant testimony and then argue to the jury that it was the appellant who prevented the jury from hearing the evidence. We hold that under the circumstances of this case it was prejudicial.\nWe have long held that a prosecuting attorney should not be tempted to appeal to prejudices, pervert testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a conviction by arguments except those which are based upon the evidence in the case. Holder v. State, 58 Ark. 473, 25 S.W. 279 (1894). In the more recent case of Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981), we reversed the conviction because the state\u2019s attorney asked a witness a question which was in reality testimony by the prosecutor. The precise question, addressed to a psychiatrist who had examined the defendant, was: \u201cOkay. Let\u2019s \u2014 Do you recall telling me in our telephone conversation that the defendant would be very likely to do this sort of thing again?\u201d In Dean the court sustained the objection and denied the request for a mistrial. We are in the same posture now as we were then. In keeping with our precedent we are bound to reverse. Our most recent pronouncement on prosecutorial misconduct is found in Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). In Foster the state called an accused accomplice knowing she would invoke her Fifth Amendment rights. The present case is almost identical.\nWe cannot say with any degree of certainty that the error was not prejudicial to. the appellant. In fact, it is quite clear that this conduct was prejudicial and could not have been corrected by anything less than a new trial. Accordingly the case is reversed and remanded for a new trial.\nReversed and remanded.\nHickman, J., concurs.\nHays, J., dissents.", "type": "majority", "author": "John I. Purtle, Justice." }, { "text": "Darrell Hickman, Justice,\nconcurring. The prosecuting attorney deliberately offered evidence which was misleading and inadmissible. In my opinion the judge realized later he should have stopped the prosecutor or granted a mistrial, but he didn\u2019t. The prosecuting attorney attempted to leave the jury with the impression that there was evidence they should be able to consider, but that it was being excluded due to the defendant\u2019s objections, which is a highly improper tactic.\nHere is what the record shows. First, it was apparently understood before trial that the witness, a serologist, could not testify about her findings after examining the victim. Second, during the trial, the transcript of the state\u2019s efforts reads:\n[Defense attorney]:\nWe have stipulated to the lady\u2019s qualifications. My understanding is that the State is not going to be able to establish chain of custody on any of the materials that she examined, and I\u2019m going to object to any testimony on her part. We don\u2019t have the examining doctor, have we?\nThe Court:\nYou may proceed with her examination. If he does make his chain of custody on it, I will allow it to be\u2014\n[Prosecutor]:\nTom is correct. I can\u2019t make my chain. It is obvious to the court that I can\u2019t, and whenever he objects I\u2019ll quit.\nThe Court:\nAll right, sir.\n[Defense attorney]:\nI\u2019ve objected at this point. If you want to go on\u2014\nThe Court:\nAll right.\n(The witness continuing.). . . .\nQ. Did you have occasion to examine some items submitted to you from Geneva Wiggins?\n[Defense attorney]:\nI want to enter an objection at this time, your Honor.\nThe Court (out of hearing of the jury):\nAre you going to admit that you can\u2019t make it?\n[Prosecutor]:\nI can\u2019t make it.\nThe Court:\nThe objection is sustained. (Italics supplied.)\nAfter this deliberate effort in front of the jury, over a proper objection, the state was allowed to ask the witness about the items examined.\nThird and last, in closing argument, the state again deliberately referred to the objectional evidence:\n[Prosecutor]:\nThe evidence is unrebutted that she went to the Crime Lab for a rape examination. We put Lisa Cooper on the stand, the serologist. He\u2019s doing his job. He objected to her testimony and we did not hear what that was. He\u2019s doing his job.\n[Defense attorney]:\nYour Honor, I think this is improper argument. And I want to object to it.\nThe Court:\nMs. Cooper did not testify to anything, Mr. Adams.\n[Prosecutor]:\nThat\u2019s correct. I didn\u2019t say she did. I said she was put on the stand and she testified as to her job and he objected.\nThe Court:\nThat\u2019s correct. There\u2019s no testimony.\n[Prosecutor]:\nThat\u2019s correct.\nThe Court:\nIt\u2019s not proper for you to refer to it.\n[Prosecutor]:\nHe is the one who said there\u2019s no evidence since\u2014\nThe Court:\nThat is correct, sir.\n[Prosecutor]:\nAll these things that he objected to\u2014\nThe Court:\nThe objection is sustained. You cannot refer to any evidence that was not admitted in this trial.\n[Prosecutor]:\nI\u2019m not referring to the evidence. I\u2019m referring that she was on the stand and he\u2019s the one who objected to it, not me.\nThe Court:\nIt is sustained.\n[Defense attorney]:\nI\u2019m going to have to move for a mistrial also on the prejudicial nature of reference to evidence that is not before the jury.\nThe Court:\nWe\u2019ll discuss this after the jury goes out. Go ahead and finish and then we\u2019ll take it up in Chambers.\nIn chambers the following occurred after some discussion and a motion for a mistrial was made:\n[Defense attorney]:\nI objected to statements that were made in the second closing of the prosecution as making reference to evidence that was not put in trial and which, in effect, in actuality was objected to by the defense and we received a favorable ruling. Our position is that any reference to the serology report which was testified to is improper and is prejudicial to my client as it leaves the jury with the inference that there was objective evidence available of the intercourse which the State was not able to validly get admitted into evidence at the trial.\nThe Court:\nWhat did you say, Mr. Adams? I missed part of it.\n[Prosecutor]:\nI don\u2019t \u2014 you know, I don\u2019t think I commented on the report. I simply said that Tommy was doing his job when he objected to her testimony. Now as to what exactly I said I\u2019m not sure.\nThe Court:\nBut what you did do was indicate that there was testimony that was objected to.\n[Prosecutor]:\nNo, I just indicated she was on the stand and he was doing his job as the attorney representing his defendant.\nThe court decided an admonition would cure the error. In my judgment, however, the error was so deliberate and flagrant it could not be cured except by a mistrial; otherwise, the rules of evidence are meaningless.\nI concur in the decision.", "type": "concurrence", "author": "Darrell Hickman, Justice," }, { "text": "Steele Hays, Justice,\ndissenting. Without ever saying so, the majority is reversing the trial court for refusing to declare a mistrial because the state made some response in rebuttal to the closing argument of the defense suggesting the state\u2019s only evidence of rape was the uncorroborated claim of the prosecuting witness. When the prosecutor referred to the serologist who had examined items submitted by the complainant to the State Crime Lab but was unable to establish a chain of custody, the defense moved for a mistrial, which the trial court denied.\nThe majority\u2019s assumption that the state called the serologist to the stand after having agreed in a pre-trial conference there was no chain of custody of the evidence so it could then argue to the jury that the defense prevented it from hearing the evidence, is palpably incorrect. There was no pre-trial conference on this issue and no indication whatever of an agreement, but a candid acknowledgement by the prosecutor that he could not establish the requisite chain after the defense had made it clear it would object on that basis. Nor did the state discuss the incident in closing until the defense had argued the alleged victim had not undergone a medical examination.\nIn closing, the defense argued: \u201cBut I mention first of all, no medical evidence, no examination by a doctor saying that she had had the sex, no indication of trauma to her body, scars or bruises, scratches, nothing, nothing at all to substantiate her claim that she had sex with the man.\u201d\nThe prosecutor answered: \u201cNow, no objective evidence. The evidence is unrebutted that she went to the Crime Lab for a rape examination. We put Lisa Cooper, the serologist, on the stand. [Defense counsel] is doing his job. He objected to her testimony and we did not hear what that was. He\u2019s doing his job.\u201d\nDefense counsel objected and later moved for a mistrial on \u201cthe prejudicial nature of reference to evidence that is not before the jury.\u201d\nI find it impossible to draw any firm conclusions from a printed record concerning this dispute. It is one thing for the defense to point out to the jury there is no evidence of a medical examination of the .victim, but quite another thing to say that there was no examination, when in fact there seems to have been. The trial court heard the exchange, told the jury to disregard any remarks of counsel having no basis in the evidence and was in a far better position to judge whether the defense invited the comment or whether the state went too far in response. I would leave his decision undisturbed.\nWe have made it clear in countless cases that reversal of a trial court\u2019s ruling on a mistrial motion is a drastic step-appropriate only in the most extreme cases and when the prejudice is so plain the trial cannot in justice continue. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980); Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). This incident hardly meets that standard.", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "William R. Simpson, Jr., Public Defender; Arthur L. Allen, Deputy Public Defender; and Thomas J. O'Hern, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.", "Steve Clark, Att\u2019y Gen., by: Joyce Rayburn Greene, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Henry TIMMONS v. STATE of Arkansas\nCR 84-207\n688 S.W.2d 944\nSupreme Court of Arkansas\nOpinion delivered May 13, 1985\nWilliam R. Simpson, Jr., Public Defender; Arthur L. Allen, Deputy Public Defender; and Thomas J. O'Hern, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.\nSteve Clark, Att\u2019y Gen., by: Joyce Rayburn Greene, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0042-01", "first_page_order": 68, "last_page_order": 75 }