{ "id": 1876554, "name": "Bruce Lamont BAILEY v. STATE of Arkansas", "name_abbreviation": "Bailey v. State", "decision_date": "1985-10-14", "docket_number": "CR 85-76", "first_page": "183", "last_page": "188", "citations": [ { "type": "official", "cite": "287 Ark. 183" }, { "type": "parallel", "cite": "697 S.W.2d 110" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "586 S.W.2d 1", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8722979, 8719853 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0806-01", "/ark/266/0486-01" ] }, { "cite": "266 Ark. 806", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722979 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0806-01" ] }, { "cite": "566 S.W.2d 263", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1978, "opinion_index": 0 }, { "cite": "263 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672717 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0536-01" ] }, { "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": "221 Ark. 793", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656535 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/221/0793-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "83 S.W. 916", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1904, "opinion_index": 0 }, { "cite": "73 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504019 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/ark/73/0148-01" ] }, { "cite": "277 Ark. 357", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750175 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/ark/277/0357-01" ] }, { "cite": "280 Ark. 27", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744825 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/280/0027-01" ] }, { "cite": "281 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742344 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/281/0348-01" ] }, { "cite": "132 N.W.2d 840", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 4627103 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/sd/81/0195-01" ] }, { "cite": "130 S.W. 547", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1910, "opinion_index": 1 }, { "cite": "96 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541967 ], "year": 1910, "opinion_index": 1, "case_paths": [ "/ark/96/0007-01" ] }, { "cite": "213 Ark. 418", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467127 ], "weight": 2, "year": 1948, "opinion_index": 1, "case_paths": [ "/ark/213/0418-01" ] }, { "cite": "260 Ark. 646", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616760 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/ark/260/0646-01" ] }, { "cite": "244 Ark. 1197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726005 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/ark/244/1197-01" ] }, { "cite": "12 Ark. App. 319", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142493 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark-app/12/0319-01" ] }, { "cite": "566 S.W.2d 263", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1978, "opinion_index": 1 }, { "cite": "263 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672717 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/ark/263/0536-01" ] } ], "analysis": { "cardinality": 573, "char_count": 9591, "ocr_confidence": 0.904, "pagerank": { "raw": 9.737458687433494e-08, "percentile": 0.5307396299938723 }, "sha256": "347dac3a79d60840fbaa4f69c4960ee2221bfe86e0395148cda7e2eed2472a87", "simhash": "1:83026da3e13013c2", "word_count": 1647 }, "last_updated": "2023-07-14T20:17:15.669869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., not participating.", "Hays, J., dissents." ], "parties": [ "Bruce Lamont BAILEY v. STATE of Arkansas" ], "opinions": [ { "text": "David Newbern, Justice.\nThe appellant was convicted of rape. The only issue on appeal is whether a mistrial should have been declared because of a statement, made by the prosecutor in closing argument, which the appellant says was a reference to his failure to testify in his defense. We find the appellant\u2019s position to be correct, and thus the case is reversed.\nThe testimony of the prosecuting witness, Doris Watson, was that the appellant took her to his room, bound her and raped her several times over a 24-hour period. She said when she at last escaped she went to the house of a friend who went to get a sister of Ms. Watson.\nIn his closing argument, the prosecutor said:\nThe only thing that we\u2019ve heard here today about which occurred in that room is from Doris Watson. She\u2019s the only person. These two ladies that were called, they weren\u2019t in that room.\nCounsel for the appellant immediately moved for a mistrial which was denied.\nThe impropriety of a reference to failure of an accused to testify has been recognized by this court since at least as early as Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). While the principal contemporary case on protection of the U.S. constitutional right to remain silent is Chapman v. California, 386 U.S. 18 (1967), we have cases prior to 1967 which reached the same result, some of which are based simply on Ark. Stat. Ann. \u00a7 43-2016 (Repl. 1977) which guarantees that no presumption may be created by an accused\u2019s failure to testify. For example, in Evans and Foust v. State, 221 Ark. 793, 255 S.W.2d 967 (1953), we said, quoting Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926):\nThis court is committed to the rule that under . . . [\u00a7 43-2016]. . .it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify.\nWhile we need not rely on Chapman v. California, supra, the position we established long ago has been reinforced by that case.\nThe reference in Evans and Foust v. State, supra, was fairly direct, but we have been equally unwilling to allow veiled references. In Adams v. State, 263 Ark. 536, 566 S.W.2d 263 (1978), we reversed a conviction because the prosecutor said in closing argument:\nTo convict him, you don\u2019t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?\nChief Justice Harris and Justice Fogleman dissented in that case. Their dissenting opinions point out, citing many cases, that a prosecutor may refer to the fact that the state\u2019s evidence is undisputed. The majority opinion, however, distinguished those cases from remarks which seem meant to refer to the defendant\u2019s failure personally to dispute the state\u2019s case as opposed to the failure of the defense to present any witness or evidence to dispute the state\u2019s case. The case before us now falls into the category described by the majority view in Adams v. State, supra. See also McCroskey v. State, 266 Ark. 806, 586 S.W.2d 1 (Ark. App. 1979). By saying \u201c[t]he only thing that we\u2019ve heard here today about which happened in that room is from Doris Watson,\u201d he must have been referring to the appellant\u2019s failure to testify. No evidence showed the other women had been in the room. Even had there been any such evidence, the damage occurred when the statement was made. It could not be repaired, and a mistrial should have been declared.\nReversed.\nPurtle, J., not participating.\nHays, J., dissents.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Steele Hays, Justice,\ndissenting.\nDoris Watson testified that appellant, Bruce Lamont Bailey, a former boyfriend, accosted her as she was walking near her home. He forced her into a room at the Oasis Motel, where he kept her bound and gagged for twenty-four hours. She was beaten, whipped with an electrical cord and raped repeatedly. The testimony of a physician and nurse who examined her after she escaped established the presence of male sperm in her vagina, \u201cnumerous whelps and bruises\u201d on her body and a \u201csignificant amount\u201d of trauma to the external vagina. She was fifteen years old.\nThe appellant did not testify. The theory of the defense was that the witness had gone willingly into the motel room with Bailey. The defense called two witnesses who testified they had seen Bailey and Doris Watson near the motel \u2014 one said they were arm in arm, the other said nothing out of the ordinary occurred.\nThe majority opinion does not suggest that the prosecutor made a direct reference to the appellant\u2019s having declined to testify, when he said:\nThe only thing that we\u2019ve heard here today about which occurred in that room is from Doris Watson. She\u2019s the only person. These two ladies that were called, they weren\u2019t in that room.\nbut finds that a \u201cveiled reference\u201d was present in the remarks, thus bringing them within the ambit of Adams v. State, 263 Ark. 536, 566 S.W.2d 263 (1978), where the prosecutor said:\nTo convict him, you don\u2019t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?\nI submit that finding the dividing line between \u201cveiled references\u201d that are permissible as opposed to those that are not is too subjective, as almost any remark which alludes to the weakness of the defendant\u2019s case might be seen as a \u201cveiled reference\u201d where the defendant has not testified or called other witnesses. The problem is more than theoretical, and the absence of an objective standard is creating difficulties for both appellate courts and doubtless for prosecutors and trial judges as well. See dissenting opinions of Chief Justice Harris and Justice Fogleman, Adams v. State, supra, and the majority and dissenting opinions in Phillips v. State, 12 Ark. App. 319, 676 S.W.2d 753 (1984).\nObviously, a better test is needed than the ad hoc basis now being applied. I believe the prosecutor should be able to refer to the weakness of the defendant\u2019s case, or to the absence of contradictions in the state\u2019s proof, so long as he or she does not point to the fact that the defendant has not testified, or imply that inferences may be drawn from the defendant\u2019s silence. Where the remarks are marginal and fall within what might be called \u201cveiled references,\u201d we would do better to rely on the trial judge to gauge the impact of the remarks. See Perry v. State, infra.\nMoreover, I fail to see how the remarks in this case can be seen as drawing attention unduly to the defendant not having testified. The remarks are little more than a fair comment on the evidence. What is the difference in the prosecutor saying, \u201cthe only thing we\u2019ve heard here today about what occurred in that room is from Doris Watson,\u201d and, \u201cDoris Watson\u2019s testimony that she was raped, beaten and kept prisoner is uncontradicted and undenied,\u201d which we have upheld, (Moore, Frazier & Davidson v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968); Harris v. State, 260 Ark. 646, 543 S.W.2d 459 (1976)) or, \u201cwhat explanation has [the defendant] made?,\u201d which we upheld in Cascio v. State, 213 Ark. 418, 210 S.W.2d 897 (1948); or \u201cDoris Watson\u2019s testimony is undisputed and undenied and he (the defendant) cannot deny it,\u201d (upheld in Davis v. State, 96 Ark. 7, 130 S.W. 547 (1910)); or, \u201cYou haven\u2019t heard one person who was there testify that [Bruce Lamont Bailey] didn\u2019t do this. The people that were there all told you that [Bruce Lamont Bailey]. . . ,\u201d which was upheld in Phillips v. State, supra.\nThe majority says the prosecutor \u201cmust have been referring to the appellant\u2019s failure to testify,\u201d when he said the only thing we\u2019ve heard here today about what occurred in that room is from Doris Watson. But that ignores testimony that the appellant\u2019s brother, Willie Foreman, was also in the room during the time Doris Watson says she was held there against her will. That surely negates the majority\u2019s conclusion that the remarks drew attention to the appellant\u2019s failure to testify. Some courts have distinguished similar remarks when other witnesses could have been called by the defense. See State v. Brown, 132 N.W.2d 840 (S.Ct. S.D. 1965).\nWe have often said that a mistrial is a drastic remedy \u2014 one that should be resorted to only when the prejudice is so manifestly clear that the trial cannot injustice continue. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984); Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). These remarks hardly rise to that level, indeed, they are less pointed than many this court has approved over the years. See cases cited in Chief Justice Harris\u2019 dissent, Adams v. State, supra, and Phillips v. State, supra. In Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), we recognized that the trial court\u2019s ability to judge the character of these issues was superior to our own:\nWe are not in a position to know how the statement was delivered, with what inflections and emphasis, and are not able to see how the jury perceived it. The trial court has a broad latitude of discretion in supervising and controlling arguments of counsel and its decisions are not subject to reversal unless there is a manifest abuse of that discretion.\nI believe the remarks in the case fall in that category and we should leave the trial judge\u2019s discretion undisturbed.", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, Jerome T. Kearney, Deputy Public Defender, by: Carolyn P. Baker, for appellant.", "Steve Clark, Att\u2019y Gen., by: Connie C. Griffin, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Bruce Lamont BAILEY v. STATE of Arkansas\nCR 85-76\n697 S.W.2d 110\nSupreme Court of Arkansas\nOpinion delivered October 14, 1985\nWilliam R. Simpson, Jr., Public Defender, Jerome T. Kearney, Deputy Public Defender, by: Carolyn P. Baker, for appellant.\nSteve Clark, Att\u2019y Gen., by: Connie C. Griffin, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0183-01", "first_page_order": 217, "last_page_order": 222 }