Duncan v. State, CR76--114
| Decision Date | 18 October 1976 |
| Docket Number | No. CR76--114,CR76--114 |
| Citation | 541 S.W.2d 926,260 Ark. 491 |
| Parties | Carl DUNCAN, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Frierson, Walker, Snellgrove & Laser by Mark Ledbetter and David N. Laser, Jonesboro, for appellant.
Jim Guy Tucker, Atty. Gen. by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.
Upon trial by jury the appellant was found guilty of first-degree rape and was sentenced to a 40-year prison term. Two points for reversal are argued.
First, Duncan testified in his own defense. On cross-examination the prosecutor inquired about Duncan's guilt in a number of earlier instances, this being a typical question: 'In March, the 7th, of 1954, in Sacramento, California, were you guilty of burglary?' Duncan denied his guilt with respect to all the offenses except a battery committed in California on July 8, 1953. Upon objection the prosecutor admitted, in chambers, that his questions were taken partly from an F.B.I. 'rap sheet', but that document was not displayed to the jury.
It does not appear from the record before us that the questions were improper. An accused may be asked in good faith, on cross-examination, if he is guilty of having committed a named criminal offense, though he cannot be asked if he was indicted or accused of a crime. Moore v. State, 256 Ark. 385, 507 S.W.2d 711 (1974); see also the American Bar Association's Standards Relating to the Prosecution Function and the Defense Function, § 5.7d (Approved Draft, 1971). Here there was no request that the F.B.I. rap sheet be made a part of the appellate record. Consequently we have no way of determining whether it contained enough information about the various asserted offenses to justify a good faith inquiry about Duncan's guilt. We do not imply that a mere showing that Duncan had been arrested 20 years earlier in another state upon a certain charge would be adequate information to form the basis for such a question.
It is also argued that the supposed offenses were too remote in time to have any bearing upon Duncan's credibility. Our cases have not been completely harmonious upon this issue of remoteness. We do not explore the matter, however, because the judgment must be reversed upon another ground. At the retrial the newly adopted Uniform Rules of Evidence will be in force, because new procedural statutes ordinarily apply to pending cases. DeLong v. Green, 229 Ark. 100, 313 S.W.2d 370 (1958). Rules 608 and 609 make changes in the law with regard to proof of specific instances of prior conduct on the part of the witness and with regard to prior convictions. Ark.Stat.Ann. § 28--1001, Rules 608 and 609, effective July 1, 1976. With the limited information supplied by this record about Duncan's earlier conduct or convictions, we are not in a position to pass upon the effect of the new rules in this case.
Secondly, a reversal is sought on the basis of a juror's having read a newspaper account that was published on the morning of the second day of the trial. The story which appeared in a Jonesboro paper (where the case was being tried), contained this statement: 'During a lengthy cross examination, Burnett read from a three page Federal Bureau of Investigation rap sheet...
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Duncan v. State
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