Smith v. State

• Decision Date: 09 July 1998
• Docket Number: No. CR,CR
• Citation: 974 S.W.2d 427,334 Ark. 190
• Parties: Benfordene Butler SMITH, Appellant, v. STATE of Arkansas, Appellee. 97-1190.
• Court: Arkansas Supreme Court

Page 427

974 S.W.2d 427

334 Ark. 190

Benfordene Butler SMITH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-1190.

Supreme Court of Arkansas.

July 9, 1998.

Willard Proctor, Jr., Little Rock, for Appellant.

Winston Bryant, Atty. Gen., Mac Golden, Asst. Atty. Gen., Little Rock, for Appellee.

THORNTON, Justice.

Appellant Benfordene Butler Smith appeals her conviction for the January 26, 1996 slaying of Burt McKinley. A jury convicted appellant of capital-felony murder and sentenced her to life imprisonment without parole. Appellant raises four points on appeal. We find no error and affirm.

We need not recount the facts in great detail because the question of sufficiency of the evidence is not raised by appellant or preserved for our review. Burt McKinley was stabbed to death in his Stuttgart residence during a robbery. The murder weapon, a knife, came from an apartment that appellant and Pam Isbell shared. It appears that following several hours of drug use, the two roommates and Greg Martin decided to rob McKinley to get money for more drugs. While there was inconsistent testimony as to which of the participants stabbed the victim, all three were at or near the murder scene at the time of the slaying, and then rented a motel room and renewed their drug use following McKinley's death. The murder weapon and a bloody jump suit that appellant had been wearing before the robbery were recovered near McKinley's house.

The issues on appeal include whether the trial court committed error in (1) refusing to give a non-model jury instruction on the legal requirement for status as an accomplice; (2) allowing evidence of appellant's prior conviction; (3) allowing rebuttal evidence of prior bad acts of appellant; and (4) allowing the admission of statements made by appellant. We address each of these issues in the order presented.

I. Accomplice-Status Instruction

At trial, the court refused to give the following instruction, proffered at appellant's request:

Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act is not sufficient to make a person an accomplice.

The trial court stated that it felt that this instruction was covered in A.M.I.Crim.2d 403, which was given, along with A.M.I.Crim.2d 401 on the same subject. The trial court further noted, in refusing to give appellant's proffered instruction, that nothing prevented appellant from arguing in closing that mere presence, acquiescence, silence, or knowledge that a crime was committed was insufficient to support a finding that she was an accomplice.

Appellant asserts that the trial court erred in refusing to give the proffered instruction. She argues that A.M.I.Crim.2d 403 was inadequate because it does not state that an individual may be present and not be an accomplice, and that because A.M.I.Crim.2d 403 does not state the law, a non-A.M.I. instruction should be allowed.

We addressed this issue in Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997). In Calloway, the appellant argued that the trial court erred in refusing to give a proffered jury instruction, which is identical to the one before us, in conjunction with A.M.I.Crim.2d 401. Calloway, 330 Ark. at 148, 953 S.W.2d at 573. We stated that in reviewing the trial court's refusal to give the non-model jury instruction, the trial court should not use a non-model instruction unless it finds that the model instruction does not accurately reflect the law. Id. (citing Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994)). We adhered to our previous decisions in which we had declined to alter A.M.I.Crim.2d 401 to reflect the legal principle that mere presence is not enough to establish accomplice liability, finding that our previous reasoning on the issue was sound. Id. (citing Williams, 329 Ark. at 21, 946 S.W.2d at 685; Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996)).

We have adopted the reasoning that under A.M.I.Crim.2d 401 and 403, both of which were given in this case, the State must prove that the accused was engaged in activity that aided in the commission of the crime and, by implication, that the accused was not merely "present." Id. If the State proves that an individual was present when a crime was committed but does not prove beyond a reasonable doubt that the individual participated in some way in the crime, then the State has not met its burden. Id. Following this rationale, it would be redundant for the trial court to instruct the jury on what does not give rise to accomplice liability in addition to what does. Id. In both Williams and Webb, we rejected the requirement of a "mere presence" instruction and held that A.M.I.Crim.2d 401 accurately and completely reflects the law of accomplice liability. Id.

Based on our clear language in Calloway and its predecessors, we affirm on this point.

II. Admissibility of Appellant's Prior Conviction

Prior to trial, appellant filed a motion in limine to exclude the introduction of evidence relating to a prior conviction for which she was incarcerated over ten years before. Although the trial court ruled at the time that the prior conviction was inadmissible under Ark. R. Evid. 609 (1998) because more than ten years had passed, the trial court ruled during trial that the State could question one of appellant's character witnesses about her knowledge of the convictions. Based on the latter ruling, appellant's counsel chose to elicit the information about the prior conviction during his direct examination of appellant when she was recalled. On appeal, appellant argues that the ruling admitting evidence of her prior conviction violated Ark. R. Evid. 609.

Under Rule 609, a party may attack the credibility of a witness with evidence that she has previously been convicted of a felony or crime involving dishonesty or false statement, as long as not more than ten years have elapsed since the date of conviction or release from confinement. Ark. R. Evid. 609(a) and (b) (1998). Appellant's reliance on Ark. R. Evid. 609 is misplaced. Rule 609 applies only when one is attempting to show that the witness herself has been convicted of a crime. Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986); Barker v. State, 21 Ark.App. 56, 728 S.W.2d 204 (1987).

Appellant's Rule 609 argument raises a relevancy question under Ark. R. Evid. 405(a). See Barker, 21 Ark.App. at 66-67, 728 S.W.2d at 210. Evidence must pass muster under our relevancy inquiry based on Rules 404 and 405 of the Arkansas Rules of Evidence. First, a defendant must establish that the character evidence is admissible under Rule 404, which states in pertinent part:

(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.

Ark. R. Evid. 404(a)(1) (1998). Once the defendant establishes the admissibility of the character evidence under Rule 404, Rule 405 establishes the methods of proof that may be used. Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995) (citing Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994)). Rule 405 provides that in cross-examining a defendant's character witness, it is permissible to inquire into the witness's knowledge of relevant specific instances of conduct. Ark. R. Evid. 405(a) (1998).

It is well established that a defendant may open the door to evidence that might otherwise have been inadmissible by producing a character witness. See, e.g., Gooden, 321 Ark. at 342, 902 S.W.2d at 227; Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986); Reel, 288 Ark. at 190, 702 S.W.2d at 810. In Gooden, the appellant was accused of arson. He called a witness at trial who testified that the appellant had been with him the day of the fire and stated, "I don't believe he would do anything like that. I've been knowing him too long. He's not that type of guy." Gooden, 321 Ark. at 341, 902 S.W.2d at 227. The trial court ruled that by this testimony, the appellant had opened the door by placing his character in issue with the witness's statement that he "wouldn't do that sort of thing." Id. The trial court allowed the State to cross-examine the witness by asking him if he was aware that the appellant had been previously convicted of four felonies. We affirmed the trial court's decision concluding that the cross-examination was allowed not to show that the appellant had committed the arson, but to determine the weight to be given the character testimony of the witness. Id.

In reaching this conclusion, we relied principally on Rules 404 and 405 and on our decision in Reel,where we explained the reason for the rule set out in Ark. R. Evid. 405(a) as follows:

The policies behind rule 405(a) are, however, distinguishable from those underlying rule 609(a). The purpose of the cross examination of a character witness with respect to a prior offense is to ascertain the witness' knowledge of facts which should have some bearing on the accused's reputation. If the witness does not know that an accused was previously convicted of a crime, the witness' credibility suffers. If he knows it but then disregards it in forming his opinion of the accused, that may legitimately go to the weight to be given the opinion of the witness ...

* * *

By presenting a character witness an accused opens the door which would otherwise be closed. If he wants us to know what his reputation is, we must be able to determine the witness' awareness of the relevant facts.

Reel, 288 Ark. at 191-92, 702 S.W.2d at 810-11; see also Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997).

The trial court ruled on the basis of appellant's motion in limine that the...