Rhodes v. State, CR

• Decision Date: 24 May 1982
• Docket Number: No. CR,CR
• Citation: 634 S.W.2d 107,276 Ark. 203
• Parties: Chester Earl RHODES, Appellant, v. STATE of Arkansas, Appellee. 81-99.
• Court: Arkansas Supreme Court

Page 107

634 S.W.2d 107

276 Ark. 203

Chester Earl RHODES, Appellant, v. STATE of Arkansas, Appellee.

No. CR 81-99.

Supreme Court of Arkansas.

May 24, 1982.

Rehearing Denied June 28, 1982.

William L. Bost, Jr. and Joan Hartman, Fayetteville, and Terry L. Foreman, West Fork, for appellant.

Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant Chester Earl Rhodes and Juanita Carr were charged with capital murder in the April 21, 1980 robbery and murder of Roland Kelley in Fayetteville in violation of Ark.Stat.Ann. § 41-1501 (Repl.1977). Juanita Carr pleaded guilty to first degree murder, received a twenty-five year sentence and testified against the appellant. The first trial ended in a mistrial but the second trial resulted in a conviction with imposition of the death penalty.

The evidence established that Carr, then a 17-year-old prostitute, went to Roland Kelley's house in late afternoon and engaged in sexual relations. Kelley did not pay and she returned with appellant later that evening to collect from Kelley. Several witnesses saw a black couple walking toward the Kelley house and later saw a black couple leave by way of the back porch. Juanita Carr and appellant are both black. One witness, Beverly Kelley, positively identified appellant as the man she saw with Juanita Carr as the two of them walked toward, and later away from, the victim's house. Shortly after the couple left the Kelley house, he was found beaten to death. The victim's wallet and approximately $65 were missing. The wallet was later found in a lot where Juanita Carr stated she had thrown it. Juanita Carr testified that appellant had beaten the victim to death with a board which was found where she stated appellant had thrown it.

We reverse the conviction and remand the case for a new trial because of prejudicial error. That point and those which, though not error, are likely to confront the trial court upon retrial are discussed in this opinion.

Juanita Carr, the accomplice in the capital felony murder, was the direct evidentiary link between the appellant, the murder and the robbery. Her credibility was a key to the state's case and it was crucial to the appellant's case that he be allowed to conduct as full an impeachment of the witness' credibility as the rules of evidence allow. The trial court granted the state's threshold motion and ruled that the appellant could not cross-examine Juanita Carr about previous incidents of shoplifting. The court ruled the appellant could only inquire about felony convictions within the past ten years. The appellant's attorney asserted his good faith basis for asking the question and made his proffer by stating "she has pursued ... we know she has pursued a course of conduct over six years involving ... thefts and devious activities, and the jury in evaluating her credibility should be made aware that she is a devious type of person." Appellant contends that the trial court erred in improperly limiting his cross-examination under Unif.Rules of Evid. 608(b), Ark.Stat.Ann. § 28-1001 (Repl.1979). Because of our prior case law we agree and reverse.

Rule 608(b) provides that "(s)pecific instances of the conduct of a witness ... if probative of truthfulness or untruthfulness" may be inquired into on cross-examination in the discretion of the trial court. Here the instance of conduct sought to be inquired into was shoplifting. In Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), we held that a cross-examiner, pursuant to 608(b), may ask a witness about prior bad acts if that prior bad conduct has a bearing on the witness' character for dishonesty. We stated that 608(b) allowed cross-examination about prior bad acts involving theft:

For example, murder, manslaughter or assault do not per se relate to dishonesty. Burglary and breaking and entering would not be such misconduct unless the crime involved the element of theft. We believe that theft, as it is defined in the Arkansas Criminal Code, involves dishonesty.

Shoplifting is a form of theft and according to our language in Gustafson, supra, the cross-examination should have been allowed. Careful examination of the transcript reveals that appellant's trial attorney relied upon our Gustafson ruling in the preparation of his case. Juanita Carr's credibility was a key issue and under our prior ruling the jury should have heard cross-examination on this issue. Because we cannot state that the appellant did not suffer prejudice as a result of the ruling we must reverse.

We have devoted much of our time in conference to the interpretation of Rules 608(b) and 609. These rules deal with attacking or supporting the credibility of a witness by questioning about specific instances of conduct. The rules bar evidence of specific instances of conduct of a witness for the purpose of attacking or supporting credibility with two exceptions:

(1) Specific instances are provable when they have resulted in criminal convictions and meet all of the requirements set out in Rule 609.

(2) Specific instances in which there has been no criminal conviction may be inquired into on cross-examination of the principal witness, or of a witness giving an opinion of a principal's character for truthfulness, but the cross-examiner may not introduce extrinsic proof of the witness' misbehavior if the witness denies the event. Rule 608(b).

We are satisfied that our Gustafson, supra, interpretation of Rule 608(b) is too broad and we prospectively modify our interpretation of the rule to limit the inquiry on cross-examination to specific instances of misconduct clearly probative of truthfulness or untruthfulness as distinguished from conduct probative of dishonesty. McCormick views misconduct, "such as false swearing, fraud and swindling" as relevant to truthfulness. McCormick, Evidence § 42 at 87 (1954). Weinstein states "Rule 608(b) authorizes inquiry into specific instances of misconduct on cross-examination but requires that they must be " clearly probative of truthfulness or untruthfulness," and gives the following illuminating footnote:

United States v. Fortes, 619 F.2d 108 (1st Cir. 1980) (no abuse of discretion in trial court finding that sale of cocaine was not probative of truthfulness or untruthfulness; court reserved decision on whether a drug transaction might ever be considered probative of a witness' veracity; though questions which court disallowed about witness' truthfulness in responding to investigators probing the incident surrounding his discharge as a police officer could well be probative of truthfulness and broad cross-examination of principal witness should be allowed when credibility of witness is central issue, no error where jury had been presented with much other evidence indicating witness' unreliable character and questionable trustworthiness); United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980) (defendant who is lawyer testifying in his own behalf may be cross-examined about suspension from bar pursuant to Rule 608); United States v. Cole, 617 F.2d 151 (5th Cir. 1980) (cross-examination proper concerning submission to former employer of a false excuse for being absent from work); United States v. Rabinowitz, 578 F.2d 910 (2d Cir. 1978) (evidence of witness' prior acts of sodomy on young children and consequent psychiatric treatment had too tenuous a bearing on credibility for court to find that trial judge had abused discretion in failing to admit; acts had no relevance to bias on the theory that witness needed to curry favor with DEA since more than five years had elapsed and no charges were pending); United States v. Hastings, 577 F.2d 38 (8th Cir. 1978) (drug transactions do not relate to truthfulness, citing Treatise); United States v. Crippen, 570 F.2d 535 (5th Cir. 1978), cert. denied, (439 U.S. 1069) (99) 100 S.Ct. 837 (59 L.Ed.2d 34) (1980) (inquiry as to whether character witness knew that defendant's firm, an automobile agency, had routinely turned back odometers; citing Treatise); United States v. Young, 567 F.2d 799, 803 (8th Cir. 1977), cert. denied, 434 U.S. 1079, 98 S.Ct. 1273, 55 L.Ed.2d 786 (1978) (trial court properly refused to allow defendant to impeach prosecution witness by cross-examining her concerning her alleged offer to pay $10,000 to have her former husband killed; proposed question was not relevant to veracity and honesty and would have been highly prejudicial, citing Treatise); United States v. McClintic, 570 F.2d 685, 690-691 (8th Cir. 1978) (cross-examination about attempted swindle proper); Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975) (in suit to recover for injuries allegedly incurred while in railroad's employ, court properly admitted employment application on which plaintiff falsely stated he had not received psychiatric treatment within past five years; evidence directly relevant to party's capacity for truth-telling, citing Rule 608); United States v. Byrne, 422 F.Supp. 147, 166 (E.D.Pa.1976), modified, 560 F.2d 601 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978) (court refused to allow cross-examination as to whether prosecution witness had issued some checks which bounced; court found the matter was not probative of truthfulness since checks often bounce where no criminal intent is involved).

Weinstein, Evidence § 608(05) p. 608-32.

Weinstein also states at p. 608-34:

Since Rule 608(b) is intended to be restrictive-and was amended to ensure that it would be restrictively interpreted by trial courts-the inquiry on cross-examination should be limited to these specific modes of conduct which are generally agreed to indicate a lack of truthfulness. The rule should not be broadened to allow questions about behavior which indicates "a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness."...