Conley v. State
| Decision Date | 23 February 1981 |
| Docket Number | No. CR,CR |
| Citation | 272 Ark. 33,612 S.W.2d 722 |
| Parties | Otha Lee CONLEY, Appellant, v. STATE of Arkansas, Appellee. 80-85. |
| Court | Arkansas Supreme Court |
Harold L. Hall, Little Rock, for appellant.
Steve Clark, Atty. Gen., by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.
A Pulaski County Circuit Court jury convicted appellant of burglary and rape. He was sentenced to 30 years plus $15,000 on the burglary and life plus $15,000 on the rape charge. The court ordered the sentences to run consecutively and consecutively with the sentences already being served.
On appeal appellant argues five points for reversal, which will be set out in the body of this opinion.
Appellant was arrested on September 19, 1978, and charged with burglary in violation of Ark.Stat.Ann. § 41-2002 (Repl.1977) and rape in violation of Ark.Stat.Ann. § 41-1803 (Repl.1977). The burglary allegedly resulted when appellant unlawfully entered a residence on West Thirteenth Street in Little Rock, Arkansas, on July 15, 1978, and forcibly raped a young woman. The victim gave a description of her assailant to the police a few minutes later. She further stated she could recognize the voice and did recognize it when she alleged he called on two occasions a week or so after she was raped. Also, a line-up was held on August 29, 1978, and after the victim heard each man in the line-up speak she identified the appellant as her assailant. Due to mechanical difficulty, photographs of the line-up did not develop. However, the police had on file individual photographs of the members of the line-up.
At a pretrial conference the appellant moved to suppress the line-up identification. The victim was a witness at the hearing, and the court explained to her his reasons for not suppressing the line-up identification. In so doing, the court instructed the witness on what to expect at the trial. He explained that the state would not ask her about the line-up but that the defendant's attorney might do so and if he did she could tell them all about the line-up. The court warned the state not to go into the line-up on direct or it would possibly result in a mistrial. The deputy prosecuting attorney stated they had no intention of going into the line-up at the trial. The court also refused to allow the individual photographs of the persons in the line-up to be introduced but permitted defense counsel to proffer them into the record for appeal purposes.
When the jury was being selected for trial the state excused six black prospective jurors. Two of the six had already been accepted by the state and the defense. The defendant had exhausted his twelve peremptory challenges when the two were excused from the box. The state had not and did not use all ten of its peremptory challenges. Apparently, some blacks remained on the petit jury panel which tried the appellant. The appellant is black. His motion for a mistrial, based on the peremptory challenge method used by the state in excluding only black jurors, was denied.
In the opening statement the deputy prosecutor stated that the victim would testify she identified the appellant at the police line-up. Neither the court nor the prosecuting attorney could remember any agreement not to mention the line-up. The appellant moved for a mistrial which was denied. As the trial continued the state questioned the victim about the line-up identification, and the appellant cross-examined her about the line-up. The questioning of the witness on direct examination by the state occurred after the court suggested the matter be cleared up.
The court refused to give appellant's Instruction No. 1 which related to identification testimony only.
In the sentencing stage the state introduced a New York felony conviction. The appellant was represented by counsel in that conviction. The state also introduced a double conviction entered on February 10, 1979, for an offense committed prior to the one for which he was being tried.
THE COURT ERRED IN PERMITTING THE STATE TO PEREMPTORILY CHALLENGE A BLACK JUROR WITHOUT CAUSE FROM THE BOX AFTER THE APPELLANT HAD EXHAUSTED HIS PEREMPTORY CHALLENGES.
THE COURT ERRED IN FAILING TO DECLARE A MISTRIAL WHEN THE STATE EXCUSED SIX BLACK JURORS BY PEREMPTORY CHALLENGES OF WHICH TWO OF THE JURORS HAD BEEN ACCEPTED BY BOTH THE STATE AND THE DEFENSE IN VIOLATION OF HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATE OF ARKANSAS.
We treat these two arguments together as they are overlapping. There is no dispute that the state was allowed to excuse two jurors after they had been seated. However, we think this argument was laid to rest in the case of Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959). In Nail we approved the state being allowed to challenge a juror who was already approved, and we also stated that if the circumstances were reversed the defendant would be allowed the privilege of peremptorily challenging a juror already accepted. The appellant relies upon the case of Jeffries v. State, 255 Ark. 501, 501 S.W.2d 600 (1973). In Jeffries the court refused to allow the defendant to excuse a juror who had already been accepted by both sides and seated in the box. We upheld the trial court's action on the grounds that the court exercised its discretion in the matter. Therefore, Jeffries and Nail are not in conflict. The appellant cites one other case in support of his argument, and that is Clark v. State, 258 Ark. 490, 527 S.W.2d 619 (1975). However, Clark repeats the exact situation as was found in Jeffries.
Appellant also challenges the state's method of exercising its peremptory challenges which resulted in excusing only black jurors. However, the appellant fails to take notice of the fact that there were still black jurors left on the trial panel after the state excused two from the panel. We do not find that the appellant has shown that the state is following a plan of systematic exclusion of black veniremen. Therefore, the argument is controlled by the case of Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965), cert. denied 384 U.S. 1016, 86 S.Ct. 1985, 16 L.Ed.2d 1037 (1966). In Brown we held a black defendant was not entitled absolutely to have a black juror on the panel which tried his case. See Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Therefore, we find no error under appellant's arguments I and II.
THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR MISTRIAL WHEN THE DEPUTY PROSECUTING ATTORNEY IN HIS OPENING STATEMENT TOLD THE JURY THE VICTIM IDENTIFIED THE APPELLANT IN A LINE-UP AFTER THE COURT RULED THAT IT WOULD NOT BE REFERRED TO AT TRIAL.
Appellant moved to suppress the line-up identification at a pretrial hearing. The victim was a witness at the suppression hearing. A portion of the hearing follows:
We're getting in a technical area. If you said it on direct examination by Mr. Crank, it might be objectionable and it might be grounds for a mistrial and this sort of thing, which we don't want to go through again. This is why I asked you if your identification is based upon the incident that night. But, if Mr. Newcomb elects to question you about the line up, you may feel free to discuss it if he brings it up.
During his opening statement to the jury the deputy prosecuting attorney stated:
... that she did go down and view a line up, that she positively identified a subject in this line up by his voice and by his physical appearance, that this subject was Otha Conley.
At this point the appellant objected and moved for a mistrial. Neither the court nor the prosecutor could remember any agreement not to allow the prosecution to mention the line-up unless it was first mentioned by the defense. However, after rejection of the motion for a mistrial the appellant did not request an admonition. During the direct testimony of the victim she identified the appellant as the man who raped her. She was asked if she was positive that this was the man who raped her. After an affirmative response, counsel for the state and defense approached the bench and conferred with the court at which time the court stated:
I think that you ought to go into the basis of her identification. Is it the night of the thing, or the line up or what, since you brought it up.
Again, the appellant moved for a mistrial which was overruled. The appellant did not move for an admonition. The questioning continued before the jury by the deputy prosecutor asking the following questions:
Miss ..., you stated you identified Otha Conley as the person who raped you. Did you make that identification based on what you saw at the line up or did you make that identification based on what you recall from the time you were raped?
The witness eventually answered that she was making her in-court identification from the events which occurred on the...
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