Conley v. State, CR
| Decision Date | 27 October 1980 |
| Docket Number | No. CR,CR |
| Citation | 270 Ark. 886,607 S.W.2d 328 |
| Parties | Otha Lee CONLEY, Appellant, v. STATE of Arkansas, Appellee. 80-7. |
| Court | Arkansas Supreme Court |
Harold L. Hall, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Mary Davies Scott, Asst. Atty. Gen., Little Rock, for appellee.
Otha Lee Conley was convicted of burglary, kidnapping, aggravated robbery, and two counts of rape. He was sentenced by the Pulaski County Circuit Court to a total of 120 years imprisonment. On appeal he argues that four errors were committed during his trial: The judge failed to excuse a prospective juror for cause; an instruction was improperly denied; the defendant was denied a speedy trial; and, the defendant was twice placed in jeopardy.
The testimony reflected that early on the morning of July 24, 1978, Conley entered a Little Rock residence, forced a twenty-one year old female at knife-point to leave the residence, stole $10.00 from her and, after taking her to a nearby residence, raped her three times, twice by sexual intercourse and once by forcing her to perform an act of oral sex on him. (He was only charged with two counts of rape.)
The first error alleged is that the judge failed to excuse for cause a prospective juror who indicated bias. When questioned, the prospective juror said he knew of a similar rape case where the defendant was "let off" and this could affect his judgment. He indicated that it would be hard for him to be unbiased and if it came to a fifty-fifty proposition he did not believe that he could lean toward the defendant. After these statements were made, the trial judge questioned this venireman and somewhat rehabilitated him, denying a motion to dismiss for cause. The defense excused this prospective juror, using one of its peremptory challenges. This prospective juror should have been excused for cause. The candid answers could not be overcome by routine responses, upon prompting by the court, to the effect that the evidence could be fairly weighed. While a trial court should never hesitate to clear up uncertainties created by voir dire examinations, there is a point beyond which a prospective juror cannot be rehabilitated. This was one of those cases.
Despite the judge's failure to excuse, Conley's counsel accepted the twelve jurors who were ultimately seated; he had exhausted his peremptory challenges but he made no showing at all that he was forced to accept any juror against his wishes. In two cases exactly on point we found no reversible error when a peremptory challenge was used and the record failed to disclose that an undesirable juror was forced on the objecting party. Arkansas State Highway Comm. v. Dalrymple, 252 Ark. 771, 480 S.W.2d 955 (1972); Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954). In Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970) the defense used some of its peremptory challenges to remove unacceptable veniremen, but the defense made a record that had it not been required to use all of its peremptory challenges, a particular juror who was seated would have been challenged. In Glover we found that the error had been preserved and reversed the judgment.
The second argument to us is that the trial court improperly refused to give an instruction approved by the Court of Appeals for the District of Columbia in U. S. v. Telfaire, 469 F.2d 552 (D.C.Cir., 1972). The trial court was proper in rejecting this proffered instruction for two reasons. First, the instruction contains comments on the evidence. This is a practice permitted in federal court but not in Arkansas. Ark.Const. art. 7, § 23. Second, the instruction concerned the weight to be given to identification testimony, a subject not covered by the Arkansas Model Jury Instructions on criminal law. The purpose of the Model Jury Instructions is to provide a uniform set of instructions that any trial court can use in any trial to avoid confusing jurors. Just because an offered instruction contains a correct statement of the law does not mean it is error for a trial court to refuse to give it. In Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554 (1971), we discussed the use of AMI instructions in civil cases. We said:
(T)he trial court did not err in rejecting this particular instruction even if it is a correct one.... The (Per Curiam Order of April 19, 1965) ... implicitly requires the parties to request an applicable AMI (modified if necessary) or, upon tendering a substitute instruction to state into the record the reasons for which they believe that the AMI is inadequate or inaccurately states the law.
In approving the Arkansas Model Criminal Instructions in a Per Curiam opinion issued January 29, 1979, we said:
If Arkansas Model Criminal Instructions (AMCI) contains an instruction applicable in a criminal case, and the trial judge determines that the jury should be instructed on the subject, the AMCI instruction shall be used unless the trial judge finds that it does not accurately state the law. In that event he will state his reasons for refusing the AMCI instruction....
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Gardner v. Norris
...that the test of a continuing offense is whether the same act constitutes a violation of each separate offense. Conley v. State, 270 Ark. 886, 891, 607 S.W.2d 328 (1980). The Supreme Court relied on Wharton to provide perhaps the clearest test of whether conduct should be seen as continuous......
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