Klimas v. State

• Decision Date: 17 February 1976
• Docket Number: No. CR75--187,CR75--187
• Citation: Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (Ark. 1976)
• Parties: Francis Edward KLIMAS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 202

534 S.W.2d 202

259 Ark. 301

Francis Edward KLIMAS, Appellant, v. STATE of Arkansas, Appellee.

No. CR75--187.

Supreme Court of Arkansas.

Feb. 17, 1976.

Supplemental Opinion on Rehearing March 15, 1976.

Thurman Ragar, Jr., Pine Bluff, for appellant.

Jim Guy Tucker, Atty. Gen. by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Francis Edward Klimas was found guilty of the burglary of the Dixie Wood Preserving Company's building near Pine Bluff and of grand larceny of property therein. He asserts three points for reversal. We find error on one point which will require either a reduction of sentence or a reversal. That point has to do with the enhancement of appellant's sentence under the Habitual Criminal Act Ark.Stat.Ann. § 43--2328--30 (Repl.1964). Appellant contends, and we agree, that there was error in the admission of evidence of previous convictions.

After the return of the jury verdict, the state offered evidence of seven felony convictions in the form of certified copies of the records of the Department of Corrections of Missouri State Penitentiary. Admittedly these copies complied with the requirements of Ark.Stat.Ann. § 43--2330. Appellant objected to their introduction, however, because none of them showed that Klimas had the assistance of counsel at the times of his conviction. The state contended then and argues now that when court records are not used to prove a prior conviction, the state is not required to show that the accused had the assistance of counsel when the record offered is silent on the matter. The state has not favored us with any authority so holding, and we do not think that such a bypass of the constitutional principle on which the decision of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) was based will stand muster. In Burgett, it was held that presuming waiver of the right to counsel from a silent record is impermissible and that the admission into evidence of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963) is inherently prejudicial. ¹

We first dealt with Burgett precepts in Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600, where the Attorney General conceded, and we agreed, that a docket entry of a judgment of conviction which was silent as to the defendant's representation by counsel and his waiver of the right to assistance of counsel was improperly admitted into evidence. Both appellant and appellee have ignored our treatment of the matter in McConahay v. State, 257 Ark. 328, 516 S.W.2d 887. The opinion there does not disclose the nature of the documents offered to sustain the habitual criminal charge, but here again the state conceded and we held that the documents were deficient and inadmissible in evidence because they were silent concerning the defendant's representation by counsel. Nothing whatever was said about the holding being restricted to court records or to indicate that it would not apply to any record offered in evidence to show prior convictions. To clearly illustrate the inappropriateness of the argument advanced by the state, we point out that the United States Supreme Court, in two sequels to Burgett, has applied the Burgett rule to evidence of convictions other than records. In both United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), the court dealt with convictions admitted by a defendant on cross-examination for impeachment purposes.

It seems clear to us that when evidence, in whatever form of a prior conviction is offered which is silent as to representation of the defendant by counsel or his waiver of the right of assistance of counsel, the state must first lay a foundation for its admission by evidence tending to show that defendant was, in fact, represented by counsel or that he had knowingly and intelligently waived his right to the assistance of counsel.

Appellant also contends that his cross-examination of Arlie Weeks, a professed accomplice, was unduly limited by the circuit judge in that he was not permitted to show that Weeks was motivated to testify by the knowledge that the prosecuting attorney would be consulted before action would be taken upon Weeks' application for parole. It appears that after Weeks confessed this burglary and grand larceny, his parole on a previous charge was revoked. The state does not actually contend that there was no error in the court's sustaining an objection to the question whether Weeks was aware that the prosecuting attorney is asked to make a recommendation to the parole board before a convict is paroled. It actually argues that any error in this respect was harmless. There is no doubt that the ruling in this case was erroneous and an abuse of the trial court's discretion to limit cross-examination on matters of credibility.

An accused should be accorded a wide latitude in cross-examination to impeach the credibility of a witness against him. See, May v. State, 254 Ark. 194, 492 S.W.2d 888. The latitude of this right of cross-examination is even broader and that of the court's discretion to limit it is somewhat narrower than in other instances. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930); State v. Hart, 239 N.C. 709, 80 S.E.2d 901, 41 A.L.R.2d 1199 (1954); State v. Williams, 6 Or.App. 189 487 P.2d 100 (1971) cert. den. 406 U.S. 973, 92 S.Ct. 2420, 32 L.Ed.2d 673 (1972); Mason v. State, 132 Neb. 7, 270 N.W. 661 (1937); State v. Roberson, 215 N.C. 784, 3 S.E.2d 277 (1939). This is particularly so when the witness is, or may be found to be, an accomplice. Boyd v. State, 215 Ark. 156, 219 S.W.2d 623; Stone v. State, 162 Ark. 154, 258 S.W. 116. See also, State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R.2d 1120 (1960); Annot., 62 A.L.R.2d 610 (1958). It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Bethel v. State, 162 Ark. 76, 257 S.W. 740; Ringer v. State, 74 Ark. 262, 85 S.W. 410; Annot., 62 A.L.R.2d 611 (1958). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Stone v. State, supra; Boyd v. State, supra. See also, Campbell v. State, 169 Ark. 286, 273 S.W. 1035; Alford v. U.S., supra. The test is the expectation of the witness and not the actuality of a promise. State v. Little, supra; Spaeth v. United States, 232 F.2d 776, 62 A.L.R.2d 606 (6 Cir., 1956).

The right of a defendant to show the bias of a witness does not lie within the court's discretion. Wright v. State, 133 Ark. 16, 201 S.W.2d 1107. Remarks of the court in Spaeth are particularly applicable here. The court there said:

* * * In all the circumstances, it would have been proper to permit careful scrutiny of Sanzo's motive for testifying against Dr. Spaeth. His testimony could well have been guided by his hope of an early parole as a reward for becoming a Government witness against appellant. It is not intended remotely to convey the impression that the United States Attorney might have promised Sanzo a recommendation for parole as a consideration for his testimony. Mere hope upon the part of Sanzo that he would be so rewarded would supply sufficient motive for his testimony against Dr. Spaeth.

Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Weeks admitted that he knew how the parole system in Arkansas worked, but the court sustained an objection to an inquiry whether appellant was aware that the prosecuting attorney is asked to make a recommendation to the parole board before there is a parole. After objection was made but before it was sustained, the witness answered that he did not. We find no further inquiry along this line, probably because of the unfavorable answer given by the witness. No effort was made to pursue the matter in any other fashion. Under these circumstances we agree with the state that the error was harmless.

Appellant also contends that the testimony of Weeks, who would have been an accomplice if his testimony had been believed, was not sufficiently corroborated to sustain the jury verdict. In reviewing the evidence, it must be remembered that the corroborating independent evidence need not be sufficient, in and of itself, to sustain a conviction. It is only necessary that it tend in some degree to connect the accused with the crime. Stout v. State, 249 Ark. 24, 458 S.W.2d 42. It may be circumstantial, so long as it is substantial. Jones v. State, 254 Ark. 769, 496 S.W.2d 423. Even though one, or a combination of several circumstances might not be sufficient, all of the circumstances when considered together may constitute a chain constituting substantial evidence tending to connect an accused with the crime charged sufficient to make a question for the jury. King v. State,254 Ark. 509, 494 S.W.2d 476. Any substantial evidence, even though slight and not altogether satisfactory and convincing, is sufficient to warrant submitting the question of its sufficiency to the jury. Mankey v. State,192 Ark. 901, 96 S.W.2d 463. Possession of recently stolen property is a proper circumstance to consider both on the charge of larceny and that of burglary, even if it be found in an automobile in which the accused is a passenger. Thacker v. State, 253 Ark. 864, 489 S.W.2d 500; Lee v. State, 200 Ark. 964, 141 S.W.2d 842. A conviction of two defendants of burglary and grand larceny has been sustained upon evidence that the stolen property was found in a room occupied by the two. Lee v. State, 200 Ark....