Conley v. State

Decision Date06 May 1991
Docket NumberNo. CR,CR
Citation305 Ark. 422,808 S.W.2d 745
PartiesPhil CONLEY, Appellant, v. STATE of Arkansas, Appellee. 90-240.
CourtArkansas Supreme Court

John Wesley Hall, Jr., Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Phil Conley, was convicted of illegal possession of a controlled substance. The state alleged Conley was an habitual offender. In the first phase of a bifurcated trial, the jury found Conley guilty. Evidence of prior convictions was admitted in the second or sentencing phase, and the jury sentenced Conley to eight years imprisonment. The Court disallowed Conley's request to be allowed to testify in the sentencing phase that he had been a cocaine addict when the offenses were committed but had placed himself in a rehabilitation program and had "kicked the habit." Conley contends the ruling was a needless encouragement to him to give up his right not to testify in the guilt-innocence phase of the trial, and thus was a violation of that right. We hold the trial Court did not err in refusing the testimony he proposed.

In Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981), we wrote that the statute upon which the two-phase trial for alleged habitual offenders is based, Ark.Code Ann. § 16-90-205 (1987), contained no indication of a legislative intention to allow introduction of any proof in the sentencing stage other than proof to rebut the evidence of previous convictions. We noted that an accused person has the right to present mitigation testimony in the guilt-innocence phase. We pointed out that "[c]ertainly the hardened criminal is not entitled to preferential treatment, which he would receive if, after the finding of guilt, he could for the first time admit his guilt, and make a plea for leniencey. The first offender has no similar opportunity."

In Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982), which did not involve a bifurcated trial, we wrote:

matters of mitigation of punishment are relevant and appropriate, within the court's discretion, for a jury's consideration in arriving at punishment.... [W]hen a witness ... admits a previous conviction, he is not absolutely precluded from offering any explanation of the offense unless it tends to retry the case and demonstrate innocence.... [T]his is an issue of relevancy, and the trial court is permitted a wide range of discretion and will not be reversed absent an abuse of that discretion.

The Jones case was an expression of the law's willingness to permit introduction of evidence of mitigating circumstances. It did not address the problem often faced by the criminal defendant in deciding whether to testify as to mitigation, which may jeopardize his chances of being found innocent or not doing so and losing the effect of that testimony with respect to sentencing. Certainly the case stands for the proposition that, within limits, it is proper for an accused person to introduce evidence in mitigation, assuming it is done at the proper time.

From Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), Conley quotes a statement to the effect that a sentencing authority must be allowed to consider any information reasonably bearing on a proper sentence for a particular defendant. The statement is quoted in support of Conley's argument that his right to due process granted by the Fourteenth Amendment to the United States Constitution was violated as well as Ark.Const. art. 2, § 8, basically his right not to incriminate himself and his right to present evidence in his own behalf.

In the Wasman case, the defendant had previously been convicted of the offense for which he was tried a second time. The original conviction was reversed. In the second trial, the judge gave a greater sentence than Wasman received in the first trial, and the judge specifically considered a conviction Wasman had received in the interim. The holding of the Supreme Court was that the trial court could consider the conviction. Thus, while we understand Conley's reference to the Court's rhetoric, the holding in the Wasman case does not support the argument.

Other Supreme Court cases cited are United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), in which it was held that a criminal defendant cannot be needlessly encouraged to give up a constitutional right or made to choose between asserting separate constitutional rights.

In the Jackson case, a federal statute made the death penalty available in kidnapping cases only if it were imposed by a jury. That meant an accused who chose to exercise his right to a jury trial faced a possible death sentence which could be avoided by relinquishing the jury trial right. In the Simmons case it was held an accused's testimony given in a pre-trial hearing on standing could not be used in the trial because, if it could be so used, an accused would have to choose between his Fourth Amendment right with respect to standing and his Fifth Amendment right not to testify.

An accused's right to testify in his or her own defense may not be limited in an unconstitutional manner, ...

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2 cases
  • Rush v. State
    • United States
    • Arkansas Supreme Court
    • April 15, 1996
    ...in the sentencing phase to evidence the accused could have but declined to present in the guilt-innocence phase. Conley v. State, 305 Ark. 422, 424-425, 808 S.W.2d 745, 747, cert. denied, 502 U.S. 876, 112 S.Ct. 218, 116 L.Ed.2d 176 (1991). In reaching this conclusion, we quoted from an ear......
  • Thomas v. State, CR92-1474
    • United States
    • Arkansas Supreme Court
    • January 18, 1994
    ...provisions, the court has continued to quote § 16-90-205. 1 See Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992); Conley v. State, 305 Ark. 422, 808 S.W.2d 745 (1991), cert. denied 502 U.S. 876, 112 S.Ct. 218, 116 L.Ed.2d Further, A.R.E. 609 clearly allows the introduction of evidence ......

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