{
  "id": 1906087,
  "name": "Richard Lee MITCHAEL v. STATE of Arkansas",
  "name_abbreviation": "Mitchael v. State",
  "decision_date": "1992-04-13",
  "docket_number": "CR 91-150",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Richard Lee MITCHAEL v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "David Newbern, Justice.\nThe appellant, Richard Lee Mitchael, was convicted of raping his seven year old stepdaughter and sentenced to thirty-five years imprisonment. He contends the Trial Court erred by (1) refusing to grant a mistrial when a witness referred to a warrant that had been issued for his arrest on a prior offense, (2) admitting his work records as evidence under the business records exception to the hearsay rule absent testimony from the custodian or other qualified witness, and (3) refusing to grant his motion for new trial based on ineffective assistance of counsel. We hold (1) the reference to the prior warrant was not sufficient to cause a mistrial, (2) a qualified witness testified with respect to the business records, and (3) Mitchael has not demonstrated ineffective assistance of counsel. We affirm the conviction.\nTestimony showed that on June 27,1990, the victim and her family went swimming at the Alma Swimming Pool. The group included the victim\u2019s mother, her brother, and Mitchael. Everyone returned to the house late that afternoon, and the mother left for work about 3:15 p.m. The brother left the house shortly thereafter. Mitchael was left babysitting the victim because it was his day off from work.\nThe victim testified she was sitting in the living room watching cartoons when Mitchael pulled her into his bedroom and onto the bed where he raped her. She described the incident in detail. Mitchael told her he would buy some diapers for her doll if she would not tell anyone. He later purchased and gave her the diapers.\nAt first, the victim did not tell her mother what had happened because she was afraid. The day after the rape occurred, she left to visit an aunt. Upon returning a week later, the victim revealed what had happened, and her mother took her to a doctor who examined her and found evidence of penetration.\nMitchael claimed the rape did not occur and that the victim was lying. He presented the testimony of his father, mother, and that of a son from a previous marriage. They testified Mitchael was at work on the 27th until 4:30 p.m. when he came by his parent\u2019s house to pick up his son, Robert. Mitchael then took Robert to Mitchael\u2019s house to spend the night. Robert testified he spent the evening at his father\u2019s house playing Nintendo. He further stated the victim acted normally and watched television in the living room. Robert saw nothing unusual happen that night. The victim and her mother testified Robert was not at their house on the 27th.\nMitchael\u2019s mother and father also'stated the victim had lied on several prior occasions. They admitted, however, that the lies always related to disputes between children.\nMitchael also attempted to prove that the victim had some knowledge about sexual activities before the 27th. This evidence was apparently presented to explain how a seven-year-old could testify in such graphic detail about sexual activities. Mitchael stated that a week before the incident allegedly occurred the victim walked into the living room while he was watching a pornographic movie. The movie allegedly depicted activities similar to the activities the victim said occurred between herself and Mitchael. The victim said she remembered walking into the living room while Mitchael was watching the movie; however, she was very confused about what exactly she saw.\nMitchael also testified he went to work at SSI Incorporated on the 27th and then to his parent\u2019s house to pick up Robert, and Robert spent the night at Mitchael\u2019s house. Mitchael said he was not in the house alone with the victim and had not touched her. He also stated he was impotent on the 27th. The mother contradicted that contention. Dr. Ross, who examined Mitchael for a prostate infection on July 12th, stated impotence could be a symptom of a prostate infection. The doctor did not know, however, whether Mitchael was suffering from the infection on the 27th.\nIn rebuttal, the State introduced Mitchael\u2019s time card at SSI Incorporated through the testimony of Martine Anhalt. The time card showed that Mitchael was not at work on the 27th. This was contrary to Mitchael\u2019s testimony, and that of his mother, father, and son.\nThe jury returned a guilty verdict. Judgment was entered on the verdict, and Mitchael moved for a new trial on the basis of ineffective assistance of counsel. The motion was denied.\n1. Mistrial\nThe victim\u2019s mother testified about filing the complaint against Mitchael with law enforcement authorities. The following colloquy occurred:\nQ: You made a complaint?\nA: Yeah, I filed a report.\nQ: Once you filed a complaint, what took place then?\nA: Well, they found that he had a warrant for his arrest.\nDefense counsel immediately moved for a mistrial on the ground that the arrest warrant referred to a prior crime alleged against Mitchael. The Trial Court refused to grant the mistrial because the jury probably believed the warrant had been issued on the current rape charge. The mother had previously stated she had called the authorities on the current charge.\nA mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge, and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989).\nMitchael has not demonstrated the prejudice necessary for granting a mistrial. The Trial Court concluded, and we cannot disagree, that the jury could have believed the arrest warrant referred to the current rape charge.\nEven if we assume jury members thought they were hearing evidence of a prior crime, that alone is insufficient for granting a mistrial in these circumstances. We have consistently affirmed refusal to grant a mistrial when a prior crime was mentioned in an inadvertent remark, absent a showing of significant unfair prejudice. See, e.g., Novak v. State, 287 Ark. 1, 698 S.W.2d 499 (1985); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982). Here, the nature of the prior crime was not even disclosed, and there is at least doubt about the jury\u2019s perception of the remark. We find no abuse of discretion in the refusal to grant a mistrial.\n2. Rule 803(6)\nThe second point argued is that the Trial Court erred by admitting Mitchael\u2019s work records because they constituted hearsay not within a recognized exception. More specifically, he argues the time card introduced as evidence did not fall within the business records exception to the hearsay rule because there was no \u201cqualified witness\u201d to show the time card was kept in the regular course of SSI Incorporated\u2019s business.\nArkansas Rules of Evidence 803(6) provides an exception to the hearsay rule for:\nA . . . record ... in any form . . . of . . . events . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity . . . shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. . . .\nThe sponsoring witness, Martine Anhalt, had been employed by SSI, a company owned by his brother, for twenty-one years. He testified he had brought with him the original time card for the week ending June 30 pertaining to Mitchael. Anhalt testified the document was a payroll record kept by company supervisors in the normal course of the company\u2019s business. He did not personally maintain the time cards but had access to them. Based on this evidence, the Trial Court ruled that Anhalt was a \u201cqualified witness.\u201d\nThe Arkansas Court of Appeals has, on two occasions, dealt with the definition of \u201cqualified witness\u201d as the term is used in Rule 803(6). In Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979), a former loan officer of a bank was found qualified to sponsor a customer account record. The Court of Appeals stated the officer\u2019s familiarity with the account, in addition to his prior employment at the bank, qualified him as a witness within the meaning of Rule 803(6). A trial judge has wide discretion in determining the qualification of witnesses and the admissibility of evidence.\nAgain in Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986), it was held that a witness sponsoring business records need not have knowledge of the actual creation of the document. The personal knowledge of the sponsoring witness regarding preparation of the business record goes to the weight rather than the admissibility of the evidence. See also McCormick on Evidence, \u00a7 292 (4th ed. 1991) (stating anyone with the necessary knowledge is qualified; there is no requirement that a sponsoring witness have firsthand knowledge of the matter reported or actually have prepared the report or observed its preparation).\nThe length of Anhalt\u2019s prior employment at SSI, coupled with his knowledge of how the work records were maintained, qualified him as a witness under Rule 803(6). We find no abuse of discretion in the Trial Court\u2019s decision.\n3. New trial\nThe last argument is that the Trial Court erred by refusing to grant a new trial because defense counsel was ineffective. Although the theory presented at trial was that no rape occurred, Mitchael argues his counsel was ineffective for failing to investigate the victim\u2019s biological father, brother, and other male relatives for having raped the victim. He also argues his counsel was ineffective for not showing the pornographic movie to the jury and by not investigating his work records prior to trial.\nTo prevail on a claim of ineffective assistance of counsel, it must be shown first that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed by the Sixth Amendment. Second, it must be shown that the deficient performance prejudiced the defense, which requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, and there is a reasonable probability that, but for counsel\u2019s errors, the factfinder would have had a reasonable doubt respecting guilt. Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990), citing Strickland v. Washington, 466 U.S. 668 (1984).\nThe burden is on Mitchael to prove his allegations, and we do not reverse a trial court\u2019s findings unless they are clearly against the preponderance of the evidence. Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990). The burden is a heavy one because counsel is presumed effective. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990).\nWe cannot say defense counsel was ineffective for allegedly failing to investigate other men for having raped the victim. Mitchael recognizes in his brief to this Court that the theory presented at trial was that no rape whatever occurred. Mitchael now claims that theory was incorrect.\nMatters of trial tactics and strategy are not grounds for post-conviction relief. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). A claim of ineffective assistance of counsel cannot be based upon improvident strategy. Coston v. State, 284 Ark. 144, 680 S.W.2d 107 (1984).\nNor was defense counsel ineffective for refusing to show the pornographic movie to the jury. Counsel did not believe it would be helpful, and this decision was also one of trial tactics and strategy.\nMitchael also argues defense counsel should have investigated his work records, suggesting counsel should not have relied on MitchaePs word and that of his relatives. By investigating, counsel would have discovered Mitchael was not at work on the 27th. Four witnesses, including Mitchael, told counsel they believed Mitchael was at work on the 27th. The failure to corroborate this story beyond the witnesses consulted was not \u201can error so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment.\u201d Vicks v. State, supra.\nAffirmed.",
        "type": "majority",
        "author": "David Newbern, Justice."
      }
    ],
    "attorneys": [
      "Roger T. Jeremiah, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: Didi H. Sailings, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Richard Lee MITCHAEL v. STATE of Arkansas\nCR 91-150\n828 S.W.2d 351\nSupreme Court of Arkansas\nOpinion delivered April 13, 1992\nRoger T. Jeremiah, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Didi H. Sailings, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0151-01",
  "first_page_order": 175,
  "last_page_order": 182
}