{ "id": 1604770, "name": "Derrick HARRELL and Carl Presley v. STATE of Arkansas", "name_abbreviation": "Harrell v. State", "decision_date": "1998-01-29", "docket_number": "CR 97-282", "first_page": "232", "last_page": "239", "citations": [ { "type": "official", "cite": "331 Ark. 232" }, { "type": "parallel", "cite": "962 S.W.2d 325" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "307 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902456 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0400-01" ] }, { "cite": "480 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131144 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/480/0039-01" ] }, { "cite": "325 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369166 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0469-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-311", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-4-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "d" } ], "opinion_index": 0 }, { "cite": "307 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902416 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0285-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-93-303", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-85-712", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "308 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904379 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0205-01" ] }, { "cite": "328 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50374 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0613-01" ] }, { "cite": "303 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882803 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0079-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "312 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935017 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0158-01" ] }, { "cite": "324 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159552 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0249-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-11-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(a)(3) and (4)" } ], "opinion_index": 0 }, { "cite": "329 Ark. 593", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236169 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0593-01" ] }, { "cite": "328 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50418 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "426" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0420-01" ] } ], "analysis": { "cardinality": 659, "char_count": 11848, "ocr_confidence": 0.743, "pagerank": { "raw": 2.2611038656400512e-07, "percentile": 0.7826423471020897 }, "sha256": "83efa27715368ac9b0ce0001f99293123818d4d608990c956f32f93579d452b5", "simhash": "1:4979c03cbfabd8fe", "word_count": 1996 }, "last_updated": "2023-07-14T15:04:18.346145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Derrick HARRELL and Carl Presley v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellants Derrick Harrell and Carl Presley appeal from convictions of rape, kidnapping, aggravated robbery, residential burglary, and theft. For reversal, they claim the trial court erred in denying their motion for new trial because of the State\u2019s nondisclosure of exculpatory impeachment material that related to the victim\u2019s credibility. Harrell also argues the court erred by denying his directed verdict as to his rape and kidnapping convictions because the evidence was insufficient to support those two crimes. We first consider HarreE\u2019s separate point, and set out the evidence in the light most favorable to the State as appellee. See Martin v. State, 328 Ark. 420, 426, 944 S.W.2d 512, 515 (1997).\nOn the morning of December 1, 1995, Lorene Davis was at home sick with the flu when she heard a noise. When she got out of bed to see what was causing the noise, she saw three men forcibly entering her house. Davis, who had seen these men previously, testified at trial that Harrell and Presley, who wore no masks, were the first to enter. Harrell had a gun. Davis related that the first two men knocked her down. The third intruder, Zachary Crockett, bore a long gun, and after he entered, he and Presley used duct tape on Davis\u2019s arms and legs to restrain her. Presley punched Davis in the face and stomach, and then raped her. Crockett assisted in Presley\u2019s rape of Davis, but left, responding to Harrell\u2019s screaming, \u201cHelp [me] look for things in the house.\u201d Davis further testified that she got a good look at all three men, that they pointed their guns at her,' and that she never consented to any of what happened. Davis related that she was \u201creal drowsy\u201d from her medicine, and on cross examination, agreed she was \u201cpretty doped up.\u201d\nAt trial, a physician testified that she had examined Davis after the events on December 1, and her findings were consistent with Davis\u2019s story that she had been struck in the face, bound by tape, and raped. A forensic serologist also averred that the blood group substance found on Davis\u2019s underwear could have been Presley\u2019s.\nThis court has repeatedly held that the testimony of a rape victim does not have to be corroborated by other testimony. Sherrill v. State, 329 Ark. 593, 952 S.W.2d 134 (1997). Thus, the State\u2019s evidence here was unquestionably substantial in showing Davis had been raped. Also, Davis\u2019s testimony, coupled with the physician\u2019s related above, sufficiently shows the crime of kidnapping. Arkansas law defines kidnapping in relevant part to include where a person, without consent, restrains another person so as to interfere substantially with his liberty with the purpose of facilitating the commission of any felony or inflicting physical injury upon or engaging in sexual intercourse with him. See Ark. Code Ann. \u00a7 5-11-102(a)(3) and (4) (Repl. 1997). However, Harrell submits that the record fails to show he committed those crimes either personally or as an accomplice. We disagree.\nAn accomplice is defined as one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996). The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).\nHere, the evidence, at the least, shows Harrell aided in the kidnapping and rape of Davis. He was shown to have entered Davis\u2019s house first while brandishing a gun, and tackled Davis, permitting her to be restrained with duct tape on her arms and legs. All three men, including Harrell, threatened to kill her if she looked at them. With this substantial evidence bearing on Harrell\u2019s participation in all the crimes with which the trio were charged, we cannot say the trial court erred in denying Harrell\u2019s motion for directed verdict.\nWe now turn to Harrell\u2019s and Presley\u2019s joint argument that the trial court erred in refusing them a new trial, because after trial, they learned Davis had previously pled guilty to the charge of possession of cocaine and that the prosecutor had failed to disclose this in response to their pretrial discovery motion. Appellants claim Davis\u2019s guilty plea was material impeachment evidence that the State had the duty to disclose under the Brady Rule. Brady v. Maryland, 373 U.S. 83 (1963). In the Brady case, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87. The Brady Rule has been interpreted to include impeachment, as well as exculpatory evidence. Unites States v. Bagley, 473 U.S. 667 (1985); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).\nHarrell and Presley first argue that Davis\u2019s prior plea of guilty under Act 346 of 1975 \u2014 Arkansas\u2019s First Offender Act \u2014 to a felony cocaine offense is material and admissible as a prior conviction under Rule 609 of the Arkansas Rules of Evidence. In sum, Rule 609 provides for the impeachment of a witness\u2019s credibility by proof of prior criminal convictions. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). The State counters, arguing that, because no judgment of guilt had been entered against Davis, her guilty plea was not admissible as a conviction under the terms of Rule 609(a).\nIn Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992), this court unambiguously held that a plea of guilty under Arkansas\u2019s First Offenders Act, Act 346, is not the equivalent of a conviction. In addition, Arkansas statutory law, Ark. Code Ann. \u00a7 16-85-712(3) (1987), provides in pertinent part that there is a conviction when a plea of guilty is accepted by the court. However, a court\u2019s acceptance of a guilty plea pursuant to Act 346 is not a conviction. A court is specifically prohibited from entering a judgment of guilt where a defendant is sentenced under Act 346. See Ark. Code Ann. \u00a7 16-93-303(a)(1) (1987). See also, Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991). Thus, since there was no showing that Davis\u2019s guilt had been adjudicated or that a judgment had been entered by the court, her plea did not constitute a prior conviction admissible under Rule 609.\nAppellants also argue that, even if Davis\u2019s guilty plea under Act 346 might not ordinarily constitute a conviction under the Act\u2019s terms, the trial court made the plea a conviction when it imposed a $500.00 fine against Davis when placing her on probation. They cite Ark. Code Ann. \u00a7 5-4-301 (d) (Repl. 1997), which provides that the court shall enter a judgment of conviction if it sentences the defendant to pay a fine. On this issue, we note that the appellants\u2019 abstract reflects no conviction judgment imposing a fine, and point out that, under Ark. Code Ann. \u00a7 5-4-311 (Repl. 1997), if a judgment of conviction is not entered at the time of probation, the court must later discharge the defendant if the defendant complies with the conditions of his probation. Here, appellants fail to produce a record with a conviction judgment to support their argument, so we find it meritless.\nWe now turn to appellants\u2019 final argument that, even if Davis\u2019s guilty plea is not a prior conviction and admissible as such, her guilty plea and the conditions of her probation still constitute impeachment material in light of her testimony at trial. They allude to Davis\u2019s testimony that, on the day of her attack, she said she was ill and \u201cdoped up\u201d because of flu medicine she had taken. This testimony, they claim, created the impression she was not involved in illegal drug activity and that the drug she took was not an illegal drug. Appellants add that, had the defense been aware that Davis pled guilty to the cocaine offense only months prior to appellants\u2019 trial, defense counsel could have explored whether she was under the influence of illegal drugs and would have consulted with Davis\u2019s probation officer to learn if she had been passing her drug testing. Appellants conclude that this evidence was direcdy relevant to her credibility and whether her \u201cmemory of events\u201d of the crimes was accurate.\nThe trial court rejected the appellants\u2019 argument and, in doing so, relied on Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996), where the court dealt with Ark. R. Evid. 404(b) which provides that the evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but that it is admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Mosley court related the well-established principle that the evidence of other criminal activity may be introduced accompanied by a cautionary instruction, if it is \u201cindependently relevant to the main issue in the sense of tending to prove some material point rather than merely to prove the witness (in the present case the victim) is a criminal.\u201d\nIn order for the appellants to prevail on this issue, they must demonstrate a reasonable probability that the result would have been different had they had the information concerning Davis\u2019s prior possession of cocaine. The court in United States v. Bagley, supra, held that \u201creasonable probability\u201d is a probability sufficient to undermine confidence in the outcome. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).\nHere, in denying Harrell\u2019s and Presley\u2019s motion for new trial, the trial court found the undisclosed information pertaining to Davis would have made no difference in the outcome of their case. We are unable to find the trial court abused its discretion in so holding. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991).\nAlthough appellants urge that somehow Davis\u2019s testimony concerning her having the flu and taking medicine misled the jury, it is difficult to see what independent relevance Davis\u2019s guilty plea might have other than to show she had previously committed a drug felony. While appellants speak in terms of questioning Davis\u2019s \u201cmemory of events\u201d that occurred on December 1, Davis\u2019s trial testimony reflected no hint of confusion or inconsistancy of what transpired. Though appellants did not argue below, or now on appeal, that identification was an issue, the record is quite clear that Davis had met and seen these men earlier and offered no doubts that Harrell and Presley were two of the three intruders. She testified that the men wore no masks, that she was able to get a good look at them, and that she had no doubts when picking Harrell and Presley out of a photo spread. On the record before us, we cannot say the trial court abused its discretion in denying the appellants a new trial.\nIn sum, we find that Harrell and Presley suffered no prejudice by the trial court\u2019s denial of their new-trial motion on the basis of Davis\u2019s guilty plea, since it is doubtful that the introduction of such evidence to impeach Davis\u2019s testimony would have affected the outcome of their case.\nFor the reasons above, we affirm.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "John Stratford, for appellant Derrick Harrell.", "Mark Ferguson, for appellant Carl Presley.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Derrick HARRELL and Carl Presley v. STATE of Arkansas\nCR 97-282\n962 S.W.2d 325\nSupreme Court of Arkansas\nOpinion delivered January 29, 1998\nJohn Stratford, for appellant Derrick Harrell.\nMark Ferguson, for appellant Carl Presley.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0232-01", "first_page_order": 254, "last_page_order": 261 }