{ "id": 1900887, "name": "Neal HALL v. STATE of Arkansas", "name_abbreviation": "Hall v. State", "decision_date": "1991-07-15", "docket_number": "CR 90-297", "first_page": "329", "last_page": "337", "citations": [ { "type": "official", "cite": "306 Ark. 329" }, { "type": "parallel", "cite": "812 S.W.2d 688" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "296 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892765 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0041-01" ] }, { "cite": "297 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891343 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0155-01" ] }, { "cite": "747 S.W.2d 99", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1893745, 1893734 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0149-01", "/ark/295/0147-01" ] }, { "cite": "295 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893745 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0149-01" ] }, { "cite": "303 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882803 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0079-01" ] }, { "cite": "274 Ark. 352", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1754962 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0352-01" ] }, { "cite": "272 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174846 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0005-01" ] }, { "cite": "295 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893782 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/295/0341-01" ] }, { "cite": "303 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882776 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark/303/0313-01" ] }, { "cite": "670 S.W.2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1984, "opinion_index": 1 }, { "cite": "282 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740879 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/282/0563-01" ] } ], "analysis": { "cardinality": 723, "char_count": 15361, "ocr_confidence": 0.868, "pagerank": { "raw": 2.2236002487771743e-07, "percentile": 0.7779109901774196 }, "sha256": "4ec99f2b5127aa3eecc090cc8c9017bddbbaee8b0963cde8006476140d59e27e", "simhash": "1:e28d492610ae3af0", "word_count": 2542 }, "last_updated": "2023-07-14T15:19:57.276738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., Dudley and Newbern, JJ., dissent.", "Holt, C.J., and Dudley, J., join in this dissent." ], "parties": [ "Neal HALL v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, Neal Hall, was tried and convicted by a Pope County jury for the rape and kidnapping of an eleven-year-old girl. He was sentenced to forty years imprisonment for the rape charge and five years for the kidnapping charge; the sentences were to run concurrently. Appellant appeals the denial of his motion for new trial. We affirm.\nThe evidence presented at trial reveals that at approximately 8:00 or 8:30 on the morning of October 18, 1989, appellant kidnapped his eleven-year-old victim as she was walking to school. He flashed a gun at her, represented himself to be an undercover policeman, and told her to get in his car. He then took her into a wooded area, undressed her, blindfolded her, and raped her vaginally, anally and orally.\nThis evidence was presented through the testimony of the victim herself. The victim\u2019s testimony was in complete accord with numerous other witnesses. Dr. Kingsley Bost, the pediatrician who examined the victim, testified she had been vaginally, anally and orally raped. Mike Modika, a school bus driver, testified that on the morning of October 18, 1989, he saw a girl who looked a lot like the victim get into a white car. Modika identified a photograph of appellant\u2019s car as the car he saw the girl enter. Two other witnesses testified that on the morning of October 18,1989, they saw a white car pulled off the road in an area near the rape scene. Both of these witnessed identified photographs of appellant\u2019s car as the car they saw. Still another witness testified that on October 18,1989, he picked up the victim on the roadside; she was terrified and crying. Yet another witness, Gladys Franklin, testified that she was a passenger on the bus driven by Modika. Franklin stated she knew both appellant and the victim and that she saw the victim enter appellant\u2019s car on the morning of October 18, 1989. She also testified that she saw appellant\u2019s car leave after the victim entered it.\nAs the single point presented in this appeal, appellant asserts the trial court erred in denying his motion for a new trial based upon the prosecutor\u2019s failure to comply with the discovery request to notify appellant\u2019s counsel of the felony convictions of material witnesses. Specifically, appellant argues the prosecutor should have notified counsel of the May 30, 1990 arson conviction of Gladys Franklin. Appellant alleges the prosecutor\u2019s failure to disclose requested information precluded him from attacking Franklin\u2019s credibility.\nAppellant\u2019s trial occurred on July 23 and 24, 1990. On February 5, 1990, appellant filed a \u201cRequest For Disclosure\u201d specifically requesting \u201cprior criminal convictions or charges or allegations of misconduct against persons whom the prosecuting attorney intends to call as witnesses____\u201d The state responded to the request on February 20, 1990, listing Franklin as a witness, but failing to list any charges or convictions. The state\u2019s response also stated that the response would be amended upon the finding of other witnesses or information. Although there was further written communication between the prosecutor and appellant\u2019s counsel regarding discovery, no mention of Franklin\u2019s guilty plea and sentence of ten years probation entered May 30, 1990, was made.\nAfter trial and upon discovery of Franklin\u2019s conviction, appellant moved for a new trial stating that the prosecutor\u2019s failure to disclose the information prejudiced him in that he was precluded from impeaching Franklin\u2019s testimony with the arson conviction. At a hearing on the motion, the trial court noted the state\u2019s failure to comply with the request was not intentional, but an oversight. Not convinced that evidence of Franklin\u2019s prior conviction would have made any difference in the trial, the trial court denied appellant\u2019s motion.\nArk. R. Crim. P. 17.1(a) states in pertinent part:\n(a) Subject to the provisions of rule 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:\n(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.\nWe have previously held that reversible error exists when a prosecutor in fact fails to comply with an appellant\u2019s timely request for discovery information which results in prejudice to the appellant. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).\nThere can be no doubt as evidenced in the foregoing discussion, that appellant filed a timely request for the information in question and that the state in fact failed to provide the requested information due to an oversight. Although we have previously considered a prosecutor\u2019s intent in deciding whether there was a discovery violation, Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981), such intent or lack thereof is no longer relevant. See Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).\nThe key issue then is whether appellant was prejudiced by the prosecutor\u2019s failure to disclose the requested information; absent a showing of prejudice, we will not reverse. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). We hold appellant has not met his burden of showing prejudice. First, as noted by the trial court, given our lack of knowledge of whether the facts relating to Franklin\u2019s arson conviction concern her truthfulness, we can only speculate that appellant\u2019s counsel would have been allowed to impeach her credibility with this information. Second, the evidence of appellant\u2019s guilt is overwhelming even absent Franklin\u2019s testimony.\nExcluding Franklin\u2019s testimony, the overwhelming evidence against appellant consists of the testimonies of the witnesses, which are related at the beginning of this opinion and the victim\u2019s testimony,which is corroborated by other evidence. When taken together, the testimonies of these other witnesses place both the victim and appellant\u2019s car near the rape scene at the same time the day the rape occurred. The victim gave an extremely detailed account about her rapist and the circumstances surrounding the crime. Both in a photographic line-up and at trial, she identified appellant as her rapist and kidnapper. The reliability of her identification of appellant is strengthened by the numerous facts to which she testified and which were corroborated by other evidence.\nThe facts to which the victim testified and the other evidence which corroborates her testimony follow. The victim testified that while she was walking to school, a man wearing a jean jacket, bluejeans, black boots, and blue hat pulled beside her in a car and showed her a gun. She later identified a B-B pistol taken from appellant\u2019s apartment as the gun she saw in the car. She testified that a hat taken from the dumpster in front of appellant\u2019s apartment looked familiar to her. She also identified a picture of the boots taken from appellant\u2019s apartment as the ones her rapist wore. The victim testified her assailant smoked Winston cigarettes; Winston cigarettes were found at appellant\u2019s apartment. She stated her attacker had shoulder-length hair that was dirty blond. Appellant admitted his hair was long, but that he cut it when he learned he was a rape suspect. Hair clippings were found in appellant\u2019s bathroom. The victim testified the car she was kidnapped in was white with a blue interior and that she heard tools or cans rattling in the back of the car. She later identified photographs of appellant\u2019s car as the one in which she was kidnapped. The truck of appellant\u2019s car was filled with aluminum cans.\nIt is true that the record indicates the jury deliberated for quite some time before reaching a verdict. Appellant contends this indicates the jury had difficulty in reaching a verdict. This contention is purely speculation on his part and it does not mean the jury would have reached a different verdict had Franklin\u2019s testimony been impeached. It simply means the jury deliberated for a while; we can only speculate as to the reason. They could have had difficulty in recommending sentencing provisions.\nIn holding that appellant has not met his burden of showing he was prejudiced by the prosecutor\u2019s failure to disclose the requested information, we in no way intimate approval of the prosecutor\u2019s actions in this case. Whatever the reason, whether it be intentional or oversight, a prosecutor\u2019s failure to disclose discoverable information to a criminal defendant is an action which should be avoided. In this case, there was no prejudice resulting from the prosecutor\u2019s negligence; it is this absence of prejudice that forms the basis of our decision.\nThe decision to grant a new trial in a criminal case is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice. Allen v. State, 297 Ark. 155, 760 S.W.2d 69 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). As there was a plethora of evidence other than Franklin\u2019s testimony to support a determination of guilt, we cannot say there was an abuse of discretion and appellant has not demonstrated any prejudice. Thus, the denial of the motion for new trial is affirmed.\nAffirmed.\nHolt, C.J., Dudley and Newbern, JJ., dissent.", "type": "majority", "author": "Donald L. Corbin, Justice." }, { "text": "David Newbern, Justice,\ndissenting. So long as the evidence against an accused is \u201coverwhelming,\u201d a prosecutor, acting in the name of the State of Arkansas, can do anything in the course of obtaining a conviction! That is the essence of the majority opinion.\n\u201cWhatever the reason, whether it be intentional or oversight, a prosecutor\u2019s failure to disclose discoverable information to a criminal defendant is an action which should be avoided.\u201d (Emphasis added.) Compare that language quoted from the majority opinion with this language from Ark. R. Crim. P. 17.1, to which I have also added emphasis:\nRULE 17.1. Prosecuting Attorney\u2019s Obligations.\n(a) Subject to the provision of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:\n***\n(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.\nThe majority opinion thus begins by altering the terms of the Rule from mandatory to discretionary. It then says we and the trial court may forget the Rule as long as the evidence of guilt is overwhelming.\nOn February 2,1990, Hall\u2019s counsel filed a discovery request seeking \u201c[a]ny record of prior criminal convictions or charges or allegations of misconduct against persons whom the prosecuting attorney intends to call as witnesses at the hearing or at trial. . . .\u201d On February 20, the prosecutor responded, listing Gladys Franklin as a witness. In April, 1990, Gladys Franklin was charged with arson. On May 30,1990, Franklin pleaded guilty to arson, was fined $500 and put on probation with the prosecutor in attendance. On July 11, 1990, the prosecutor updated his response to the discovery request with the name of an additional witness and a number of physical items he intended to present at the trial. No mention was made of the fact that Ms. Franklin had been convicted of a crime.\nGladys Franklin was a key witness against Hall. If the jury had had doubts about the testimony of the victim, Ms. Franklin\u2019s testimony would have been the only testimony directly identifying Hall as having been with the victim on the day the crime occurred.\nAs the majority opinion points out, the jury took considerable time in reaching its decision. The jurors might well have had some doubts. Experts testified that no latent fingerprints in Hall\u2019s car matched those of the victim, and pubic hairs found on the victim were not similar to Hall\u2019s! Of course, no one can say, in the words of the majority opinion, \u201cthe jury would have reached a different verdict had Franklin\u2019s testimony been impeached.\u201d If the accused has to prove that to get a reversal for violation of a rule, then the rule might as well not exist.\nHad Hall\u2019s counsel been apprised of the fact that Franklin had been charged with arson in the same judicial district in which this trial was taking place, his cross-examination of her could have all but nullified her testimony in the eyes of the jurors who, obviously struggled with the evidence as it was. Was it \u201cprejudicial\u201d for Hall\u2019s counsel not to have had that information? Yes, without a doubt.\nIn Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), we opined that overwhelming evidence of guilt may be considered along with allegations of error, and we held that, \u201cNo longer is it presumed that simply because an error is committed it is prejudicial error.\u201d In Johnson v. State, 303 Ark. 313, 796 S.W.2d 342 (1990), we overlooked error largely on the basis of inconsistent positions taken by Johnson\u2019s brief with respect to that error. In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), we wrote we would not \u201ccount\u201d the error of failure of the prosecution to make a tape recording of Mitchell\u2019s confession available to him, noting the \u201coverwhelming evidence of guilt,\u201d but we emphasized the \u201cgood faith\u201d of the police officers who had erased the tape so that it could be reused. With respect to an error in selecting the jury in that case, we said we were able to overlook a \u201ctechnical\u201d default where the evidence of guilt was overwhelming, the error was harmless, and thus the accused was not prejudiced by the mistake. We could not find evidence that the jury treated Mitchell in any way that was prejudicial to him. In this case, to the contrary, it is unquestionable that there was prejudice toward Hall, and the prejudice was unfair although the trial court concluded it was the result of an \u201coversight.\u201d\nThe facts of this case show that a heinous and revolting crime was committed. I cannot, however, condone the conclusion that we can overlook the serious violation of Hall\u2019s rights because of the nature of the crime or solely because the evidence against him was strong or even \u201coverwhelming.\u201d Any defendant is entitled to fair treatment as it is spelled out in our Rules, regardless of the strength of the evidence against him or her.\nIf we begin to disregard our explicit Rules which we purport to establish to protect the rights of individuals, the erosion of personal liberties will escalate. We will no longer be able to claim with any degree of honesty to be a \u201cgovernment of laws.\u201d Hall should be given a new trial in which his rights are respected regardless of the nature of the crime with which he is charged and regardless of the strength of the evidence against him. That will be a small price to pay for the liberties we enjoy as a result of fairness in the courtroom.\nI respectfully dissent.\nHolt, C.J., and Dudley, J., join in this dissent.", "type": "dissent", "author": "David Newbern, Justice," } ], "attorneys": [ "Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.", "Winston Bryant, Att\u2019y Gen., Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Neal HALL v. STATE of Arkansas\nCR 90-297\n812 S.W.2d 688\nSupreme Court of Arkansas\nOpinion delivered July 15, 1991\nGibbons Law Firm, P.A., by: David L. Gibbons, for appellant.\nWinston Bryant, Att\u2019y Gen., Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0329-01", "first_page_order": 369, "last_page_order": 377 }