Jackson v. State
| Decision Date | 04 February 1985 |
| Docket Number | No. CR,CR |
| Citation | 683 S.W.2d 606,284 Ark. 478 |
| Parties | Louis Charles JACKSON & Matthew Austin, Appellants, v. STATE of Arkansas, Appellee. 84-167. |
| Court | Arkansas Supreme Court |
John W. Achor, Little Rock, for Jackson.
William R. Simpson, Jr., Public Defender by Donald Campbell, Deputy Public Defender, Little Rock, for appellants.
Steve Clark, Atty. Gen., by Jack Gillean, Asst. Atty. Gen., Little Rock, for appellee.
Two separate appeals are presented in this case. One concerns a defendant's right to testify in his own behalf and the other questions the admissibility of a confession.
Both defendants were convicted of rape stemming from the same incident and each received a sentence of 40 years imprisonment. This appeal from that verdict is before this court under Sup.Ct.R. 29(1)(b). Because unrelated issues are raised by the two appeals, we will discuss them separately.
Louis Charles Jackson, one of the appellants, argues that the trial court violated his constitutional rights by prejudicially limiting and infringing upon his right to testify in his own defense. The victim testified that an ice pick was held on her by appellant Austin while appellant Jackson raped her. Jackson's defense was that the victim is a prostitute who consented to the sexual act.
The relevant testimony to his appeal is as follows:
Mr. Achor: Judge, I don't think that is covered by the Statute.
A. Yes, she was willing to have sex. Only thing I can say is she was just trying to make twenty-five dollars and we didn't give her twenty-five dollars and she just got mad, you know, just as simple as that.
Appellant, Jackson, bases his appeal on the fact that a criminal defendant has a constitutionally protected right to present a defense and to testify in his own defense. The appellant argues that this right supersedes evidentiary rules, such as hearsay, citing two United States Supreme Court cases, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) and Davis v. Alaska 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
For the purposes of this appeal, appellant Jackson is not challenging the first objected to testimony, rather he argues that the testimony about the ice pick was admissible. In support of this argument, he claims that the statement was not hearsay and that its exclusion violated his superior constitutional right to present his defense. These arguments are without merit.
From the record we cannot determine the exact grounds for the objection, nor the grounds for the exclusion of the evidence by the trial court. We will uphold the exclusion, however, even if it was for the wrong reason, if the ruling was correct. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981).
Arkansas's rape shield law, Ark.Stat.Ann. § 41-1810.1 (Repl.1977) provides in pertinent part:
In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810 ... opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Appellant Jackson maintains that the ice pick statement represented the victim's admission that she had participated in what amounted to a robbery of another man. He abstracted the earlier testimony that "her mens give her money" because it was "essential to an understanding of the next exchange." Presumably then, the statement about the robbery was also introduced to somehow demonstrate that the victim was a prostitute and therefore consented to the sexual act. If, in fact, this statement was to be used to prove consent, § 41-1810.1 clearly prohibits the use of such testimony for that purpose. If the statement was offered to prove robbery of another person by the victim, it was inadmissible because it was not relevant.
The statutes following § 41-1810.1 set out a procedure whereby a defendant can introduce evidence of a victim's prior sexual conduct. The evidence is admissible if its relevancy is proved through the procedure set out in the statutes. § 41-1810.2. Under the rules provided, a written motion must be filed by the defendant stating the relevant evidence being offered and the purpose for which the evidence is believed relevant. § 41-1810.2(a). A hearing is held in camera. § 41-1810.2(b). The court then determines if the offered proof is relevant to the fact in issue, and if its probative value outweighs its inflammatory or prejudicial nature. Id. The defendant or his attorney is subject to sanctions for failure to file such a motion if a willful attempt is made to make any reference to the victim's prior sexual conduct in the presence of the jury. § 41-1810.4.
Here, the record reflects that no such motion was filed. Not only was the proper procedure not followed, there was no proffer of the type of evidence the appellant was trying to present. The failure to proffer evidence so this court can determine if prejudice results from its exclusion precludes review of the evidence on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979).
From the statements made during the trial, the objection was apparently sustained by the trial court as hearsay. The appellant argues that it is not hearsay since it falls within an exception allowing admissions by party opponents if "[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity." Unif.R.Evid. 801(d)(2)(i). Here, the...
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Clark v. State
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