Rogers v. State

• Decision Date: 12 October 1970
• Docket Number: No. 5525,5525
• Citation: 458 S.W.2d 747,249 Ark. 117
• Parties: Eddie ROGERS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 747

458 S.W.2d 747

249 Ark. 117

Eddie ROGERS, Appellant, v. STATE of Arkansas, Appellee.

No. 5525.

Supreme Court of Arkansas.

Oct. 12, 1970.

Rehearing Denied Nov. 16, 1970.

George Howard Jr., Pine Bluff, for appellant.

Joe Purcell, Atty. Gen., Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellant, Eddie Rogers, was convicted of the crime of first degree rape, the jury fixing his punishment at confinement in the Department of Correction for fifty-five years. From such conviction, appellant brings this appeal. For reversal, six separate points are asserted which we proceed to discuss in the order listed.

It is first contended that the evidence was insufficient to support the verdict of the jury. Appellant's defense is predicated on the contention that intercourse with the prosecuting witness was by consent; in fact, appellant testified that he had had sexual relation with the prosecutrix on three other occasions. The alleged victim said that she retired about 10 P.M., her husband being away. Her one year old child was in the bed with her and three other children were in another bed in the same room. About 3:30 A.M. she was awakened by a man standing by the bed, who said, 'Be quiet and I won't have to hurt you'. She testified that he kissed her on the lips 'pretty hard', bruising her lips, had intercourse with her, and then left. The witness said that she did not know her attacker. Admittedly, she did not cry out for help, and appellant argues that there was no force employed, and thus no rape; that there was a duty on the part of the alleged victim to resist the attack, and that the evidence was that this was not done. We do not agree with appellant in his interpretation of the applicable law. The prosecutrix testified that she did not make an outcry because she was 'afraid to', and was fearful that her assailant might hurt the children if they were awakened; that except for fear of the children's safety, she would have endeavored to fight him.

This being true, rape was committed. We have said that if a woman assaulted failed to resist or to make outcry because she feared for her safety, the crime was against her will and would constitute rape. Threet v. State, 110 Ark. 152, 161 S.W. 139; Hamm v. State, 214 Ark. 171, 214 S.W.2d 917.

Dr. Owen Griffin Blackwell testified that he examined the prosecuting witness several hours after the alleged occurrence, found sperm in the vagina, and swelling of the hymeneal ring, the latter condition not usually occurring after normal sex relations. He stated that penetration had taken place. Deputy Sheriff Earl May testified that when he went to the home of the prosecuting witness, he found her upper lip swollen, 'swelled up and blue', and Deputy Sheriff Mickey Adkinson, also present, testified that the prosecutrix was crying and 'her lips seemed like they were busted'. As previously stated, appellant admitted the act of intercourse, but testified that it was by consent. The question of who was telling the truth was, of course, a jury question, and it was resolved against Rogers. The evidence was sufficient to sustain the conviction.

The next two points deal with the action of Officer May in taking articles of clothing and a bottle of powder from the home of appellant. Appellant says that these articles were inadmissible in evidence for the reason that Rogers was not under arrest at the time they were taken. According to the testimony of May, Rogers voluntarily gave him the clothing after a request for same had been made, and the powder was turned over voluntarily by the wife of appellant. May further testified that before obtaining any of this personal property, Rogers was advised of his contitutional rights, the officer reading to him from a card the warnings required to be given a suspect before interrogation, as set out in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. There is no necessity to discuss whether the taking of the clothing and powder required a search warrant, for the admission of this testimony could not possibly have been prejudicial. Let it again be pointed out that there was no denial of the act of intercourse--only that the act was committed by force. There was nothing about the clothing nor the powder that added weight to the state's argument that force had been used. It follows that there is no merit in this contention.

It is next asserted that appellant was deprived of his constitutional rights by failure of the officers to advise him of the rights under Miranda, mentioned in the preceding paragraph. This point is predicated on the fact that the 'Miranda warning' card was not introduced into evidence, nor was the content read into the record to determine whether the card actually contained the necessary warnings. Mr. May testified that he did read a card containing these warnings to appellant; that he kept such a card with him at all times; that the card was either the same one that the witness produced at the trial, or was one just like it. Of course, defense counsel had the opportunity to examine the card which May was referring to during his testimony. ¹ The deputy answered to specific questions that appellant was told that he had a right to remain silent, that he had a right to talk to a lawyer, and that anything said by appellant could be used against him. Deputy Sheriff Adkinson's testimony corroborated that of May. Rogers denied that he was advised of his constitutional rights.

Here again we have a conflict of the evidence, and it was a function of the jury to determine which witness was telling the truth. However, even if it were established that the warnings were not given, we see no prejudice, for Rogers maintained that intercourse had been by consent, and he made no admission to the officers that would indicate to the contrary.

It is contended that the court erred in permitting the witnesses to be asked the question 'Did he tell you he would hurt you if you didn't cooperate?'. The assertion of error is based on the allegation that this was a leading question. Assuming, without deciding, that the argument is correct, there would still be no error for, though the objection to the question for, overruled, the question was never answered; instead, the prosecuting attorney asked another question.

Finally, it is argued that there was an unconstitutional selection of the list of prospective jurors which included the petit jury that tried the appellant.

Let it first be stated that there was no challenge to the jury panel until after Rogers had been found guilty. The proof offered in support of this allegation was submitted during a hearing on a motion for a new trial held approximately two weeks after the verdict of guilty had been rendered. ² The state suggests that the challenge to the panel came too late. It was so held in the federal case of Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187. There, an attack was made upon a panel of prospective jurors during the course of voir dire examination, defendant being charged with violation of the Federal Narcotics Act, and it being contended that he had been denied trial by an impartial jury because the jury was composed of government employees; that one of the jurors, and the wife of another, were employed in the Treasury Department (though outside the Narcotics Bureau), the agency charged by law with enforcing the act. The contention was rejected in an opinion by Justice Rutledge, the decision resting on the ground that the challenge was not timely made.

Be that as it may, we prefer to rest our decision upon the basis that no discrimination was shown. What are the facts relied upon by appellant to establish discrimination? First, it appears from the figures, deduced by appellant from evidence offered, that the population of the Arkansas City District is approximately 53% Negro and 47% white. ³ The petit jury list for the term for which appellant was tried reflects that thirty-eight persons were selected to the panel, thirty members of the white race, and eight members of the Negro race. This certainly does not establish discrimination, and really, is hardly a pertinent factor since, in Arkansas, only electors are eligible serve on a petit jury. One becomes an elector by registering to vote. Proof reflects that there are 4,210 registered voters in the Arkansas City District, but the voter list does not show how many of these are white and how many are Negro. ⁴ The only proof offered by appellant on this point was by the President of the Dumas Chapter of the NAACP, and also President of the Citizens Improvement Club. He stated that these organizations sponsor and encourage voter...