Kemp v. State
| Decision Date | 20 October 1980 |
| Docket Number | No. CR,CR |
| Citation | 606 S.W.2d 573,270 Ark. 835 |
| Parties | James KEMP, Jr., Appellant, v. STATE of Arkansas, Appellee. 80-155. |
| Court | Arkansas Supreme Court |
Holmes, Holmes & Trafford by Winfred A. Trafford, Pine Bluff, for appellant.
Steve Clark, Atty. Gen. by Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, a 28 year old male, was charged by information with rape in violation of Ark.Stat.Ann. § 41-1083 (Repl.1977), and arrested on November 13, 1978. He was released on bond and entered a plea of not guilty, alleging consent as his defense to the charge. On April 11, 1980, ten days prior to the date set for trial, appellant filed a motion requesting a hearing on the relevancy of the alleged victim's prior sexual activities, and on April 14 filed another motion seeking an absolute dismissal of the charge claiming he had been denied his right to a speedy trial under Rule 28 of the Arkansas Rules of Criminal Procedure. On the day set for hearing of the motions, appellant filed a third motion asking the trial court to rule that the rape shield statute, Ark.Stat.Ann. §§ 41-1810.1, et seq., (Repl.1977), was unconstitutional. The trial court held that appellant had not been denied a speedy trial, that the rape shield statutes were not unconstitutional, and that evidence of the prosecutrix' prior sexual activity would be inadmissible at trial. Appellant brings this interlocutory appeal from those rulings of the trial court made at a pretrial hearing. We agree with the ruling of the trial court on all three points.
Appellant's first contention involves his allegation that he has been denied his right to a speedy trial as provided in Rule 28 of the Arkansas Rules of Criminal Procedure. Rule 28.1 provides, in pertinent part:
(b) Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court ....
The terms of court in Jefferson County are established by law as beginning on the first Monday in March and the first Monday in October of each year. Ark.Stat.Ann. § 22-310 (Repl.1962). The Eleventh Judicial District, of which Jefferson County is a part, was divided into two divisions by Act 194 of 1973. Appellant urges that our decisions in Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979), and Alexander v. State, 268 Ark. 384, 598 S.W.2d 395 (1980), require the finding that four full terms of court have passed since his arrest and, thus, he has been denied a speedy trial. Appellant contends that, as there are two circuit judges in the district, for the purposes of Rule 28 there were two terms of court which began on March 5, 1979, and two terms which began on October 1, 1979. As appellant was not brought to trial during either of these terms, he contends four full terms have passed in violation of Rule 28.
Appellant's reasoning is erroneous. Neither Harkness nor Alexander authorizes the computation relied upon by appellant. Regardless of the number of judges, there are but two terms of court in Jefferson County in any one-year period-the one term that begins in March and the one that begins in October. We have previously held in Wade v. State, 264 Ark. 320, 571 S.W.2d 231 (1978) that the term during which a defendant is arrested is not counted for purposes of the rule. Therefore, the first term that is counted began March 5, 1979, the second term began October 1, 1979, and the third term began March 3, 1980. As the case was set for trial on April 21, 1980, and the third full term of court did not end until October 6, 1980, there was no denial of a speedy trial under Rule 28.
Appellant's other point for reversal is that the trial court erred in finding Ark.Stat.Ann. § 41-1810.1, the rape shield statute, constitutional. We have addressed this argument on several occasions and consistently rejected it. Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979); Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). In Dorn, supra, we noted, 267 Ark. at 368, 590 S.W.2d 297:
(T)he rape shield statute was a rational attempt by the Legislature to protect the prosecutrix from harassment that might arise if her prior sex life was disclosed in court. Another closely related justification for rape shield laws is that they will aid in crime prevention because victims, knowing that the statute protects them from the embarrassment of the introduction of evidence of previous sexual activity, will be encouraged to report rape offenses. In light of these legitimate state policies, it cannot be said that the disparate treatment of this statute is without a reasonable basis.
We have also rejected arguments that the statute violates the accused's rights to confront the witnesses against him and his right to due process of law. Marion v. State, 267 Ark. 345, 590...
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