McConahay v. State, CR

• Decision Date: 02 December 1974
• Docket Number: No. CR,CR
• Citation: 257 Ark. 328,516 S.W.2d 887
• Parties: Richard S. McCONAHAY, Appellant, v. STATE of Arkansas, Appellee. 74--99.
• Court: Arkansas Supreme Court

Page 887

516 S.W.2d 887

257 Ark. 328

Richard S. McCONAHAY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74--99.

Supreme Court of Arkansas.

Dec. 2, 1974.

Rehearing Denied Jan. 20, 1975.

F. James Jefferson, Green Forest, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Asst. Atty. Gen. and Arthur John Anderson, Jr., Deputy Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury first determined appellant guilty of grand larceny. Then pursuant to the habitual offender act, Ark.Stat.Ann. § 43--2328 (Supp.1973), documents evidencing four previous convictions were introduced and appellant's punishment was assessed by the jury at 31 1/2 years, the maximum, in the Department of Correction. Appellant asserts for reversal that the court erred in allowing the jury to consider as evidence of prior convictions two documents which do not reflect whether the appellant was represented by or had validly waived counsel. The state with commendable candor concedes this is error.

Appellant's court appointed and present counsel objected to the introduction of these two deficient documents. However, they were admitted into evidence on the basis that they reflected appellant had received a jury trial. Therefore, it presumably would appear that appellant was represented by counsel. It is well settled that '(p)resuming waiver of counsel from a silent record is impermissible.' Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The introduction of a previous conviction document, where that record concerning representation is 'silent,' is prejudicial error. Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973); Richards v. State, 254 Ark. 760, 498 S.W.2d 1 (1973); Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972), and Burgett v. Texas, supra.

Appellee urges that a practical and appropriate procedure now would be to remand the cause for an evidentiary hearing by the trial court similar to that in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), to determine if appellant was represented by or validly waived counsel during the trials of his two out of state convictions. By Ark.Stat.Ann. § 43--2105 (Supp.1973), following Denno, a confession of a defendant is not admissible into evidence for a jury's consideration until the court has first held an in chambers hearing and there determined by a preponderance of the evidence that the confession was free and voluntary. When determined as being admissible our statute requires that thereupon '(I)ssues of fact shall be tried by a jury . . ..' In Kagebein v. State, 254 Ark. 904, 496 S.W.2d 435 (1973), we recognized that Denno and our statute are for the purpose of preventing a jury from hearing an involuntary confession. There we said 'It is not intended to restrict evidence a jury may hear after a court determination of voluntariness has been made. The defendant still has the constitutional right to have his case heard on the merits by a jury, including the weight and credibility the jury might give to the voluntariness of the confession.'

The state says, however, in the case at bar, that upon a remand it is willing to shoulder the heavy burden of proof in a Denno hearing to convince the trial court beyond a reasonable doubt that the appellant was represented by or validly waived counsel at the time of his previous convictions. If the state meets that burden of proof with respect to the admissibility of the deficient documents, then the state asserts appellant's sentence should stand and would comport with appellant's constitutional rights. If, however, the burden of proof is not met, then the state would have the election to retry the appellant or accept the minimal enhancement of his sentence based upon the two documents to which no objection was made. We cannot agree with this suggested procedure.

Ark.Stat.Ann. § 43--2330.1 (Supp.1973), our habitual criminal statute, reads in pertinent part:

The following trial procedure shall be adhered to in cases involving habitual criminals:

(1) The jury shall first hear all the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict, as to this charge, based only upon such evidence; * * * (which was done in the case at bar) (2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant's prior conviction(s). Provided, that the defendant shall have the right to deny the existence of any prior conviction(s), and to offer evidence in support thereof. (Emphasis ours.)

Certainly, it is for the trial court to determine the preliminary issue as to admissibility of the evidence. Cantrell v. State, 117 Ark. 233, 174 S.W. 521 (1915). The court should not now be asked to do indirectly what it could or should not do directly at the initial trial; i.e., determine the truthfulness or veracity of the admittedly infirm documents without that issue being determined by the jury. Cf. Cantrell v. State, supra. That is an issue which our legislature clearly intended for the jury's determination once the trial court finds it admissible. Citations are not necessary to the effect that we have consistently held that a statute, which is penal in nature, as here, must be strictly construed.

Appellant's counsel had a right to rely upon our previous decisions interpreting this statute and the procedure followed. Wilburn, supra. When the prior convictions were introduced, counsel properly objected and pointed out the constitutional infirmity. In Denno the defendant testified before the jury as to his version of his confession. According to Wilburn, it was unnecessary for appellant to testify or introduce any evidence, neither of which he did, since the documents were, as admitted, constitutionally defective. The burden was upon the state to offer proper documents or evidence before the jury to correct the defects. Our state and federal constitutions guarantee appellant the right to confront and cross-examine adversary witnesses. The jury, by this highly penal statute should be allowed, if requested, to weigh the credibility of these witnesses on a most vital and crucial fact issue.

In the case at bar, in accordance with our well established procedure when an infirm document of a previous conviction is admitted as evidence, we reduce appellant's sentence. Roach v. State, supra, Richards v. State, supra, and Wilburn v. State, supra. Here we reduce appellant's sentence to a total of four years (one year minimum for grand larceny (Ark.Stat.Ann. § 41--3907 (Repl.1964)), plus three years for the two unquestioned previous convictions) to remove any possibility of prejudicial effect to the appellant resulting from the two defective documents concerning previous convictions. If the state, through the attorney general, desires to accept this reduction within seventeen calendar days, the judgment is affirmed as modified. Otherwise, the judgment is reversed and remanded.

Affirmed upon acceptance of modification.

HARRIS, C.J., and FOGLEMAN and BROWN, JJ., dissent.

HARRIS, Chief Justice (dissenting).

I agree with the procedure suggested by the State as far as this particular litigation presently before the court is concerned. In Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600, this court, upon the authority of the United States Supreme Court cases cited in Wilburn, reversed the judgment because the evidence offered concerning one of appellant's three prior convictions did not reflect that Wilburn was represented by counsel in the earlier conviction, or that he had waived counsel, and we remanded the case for another trial 'unless the attorney general within 17 days elects to accept a modification of the punishment so as to sentence Wilburn to the minimum time of three years plus one additional year as penalty for the second offense, or a total of four years in the state penitentiary.'

I am in agreement with the State's proposal that this cause should be remanded for further proceedings to be conducted before the trial judge in order to determine whether the prior convictions were, as a matter of law, constitutionally infirm. Evidence should be presented before the court relative to whether appellant was represented on those occasions by counsel, or if he waived the right to counsel. If the additional evidence affirmatively reflects either of these facts, then, of course, the documents which were presented before the jury were properly admissible, and the original sentence should stand. On the other hand, if the evidence does not reflect either of these two facts, the State would then elect under the option set forth in Wilburn and either accept the minimal enhancement sentence of four years, or retry appellant with the possibility of obtaining, upon conviction, an enhancement sentence of from four to 21 years. I cannot see how McConahay can be prejudiced under this procedure, for unless the evidence, beyond a reasonable doubt, reflects that McConahay was represented by counsel, or waived the right to counsel, the judgment stands reversed. On the other hand, if the evidence reflects beyond a reasonable doubt that McConahay was represented by counsel, or waived that right, he still has suffered no prejudice, for the jury has already passed upon his prior convictions (the same jury that passed on the current grand larceny charge), and our statute has thus been complied with. I recognize that McConahay did not take the stand to testify relative to these prior convictions--but he certainly had the opportunity to testify and to deny that he had been convicted. Thus far, I agree with fellow Justice Fogleman, and we are in accord with regard to disposition of this case.

However, as far as future cases are concerned, I would suggest the following procedure:

The jury shall first hear all the evidence relating to the current charge against a defendant and shall retire to reach its verdict as to this particular charge, based only upon the...