Todd v. State, CR
| Decision Date | 29 October 1984 |
| Docket Number | No. CR,CR |
| Citation | 283 Ark. 492,678 S.W.2d 345 |
| Parties | Brian TODD, Appellant, v. STATE of Arkansas, Appellee. 84-128. |
| Court | Arkansas Supreme Court |
Donald R. Huffman, Public Defender, Bentonville, for appellant.
Steve Clark, Atty. Gen., by Joyce Rayburn Greene, Asst. Atty. Gen., Little Rock, for appellee.
Brian Todd was convicted of several felonies in connection with the burglary of Triple T Foods, a food processing plant in Rogers, Arkansas. Todd worked there until he and three of his fellow workers were fired for smoking marijuana in November of 1981. Todd and Jason Jackson, who was fired with him, broke into the plant on November 30, 1981. Using a torch, they opened and robbed the candy, soft drink and money changing machines. The police learned of Todd's involvement when they interrogated Jackson after Todd had implicated Jackson in a separate burglary. Jackson confessed to the Triple T Foods burglary in return for a grant of immunity in that case. Charges were filed against Todd on July 1, 1983.
Todd makes two arguments on appeal: (1) the prosecuting attorney used his subpoena power after charges were filed to interrogate witnesses for trial--a use of the power not authorized by law; and (2) the trial court was wrong in allowing a witness to rebut an express or implied charge of recent fabrication by testifying about another witness' prior consistent statement. Both arguments must fail.
Essentially, the appellant's first argument is that the statutory power of a prosecuting attorney to subpoena witnesses is the same as the subpoena power of a grand jury: that is, it is limited to investigation and cannot be used once the investigation ceases and charges are filed. The power of subpoena was granted to prosecuting attorneys after the Arkansas Constitution was amended to allow prosecutors to file charges by information. See Ark. Const.Amend. XXI and Act 160 of 1937. Before that time, charges had to be filed by a grand jury. After the passage of the amendment, grand juries met less frequently and the prosecutor supplanted the grand jury to a certain degree. Taylor v. State, 220 Ark. 953, 251 S.W.2d 588 (1952). The subpoena power was granted to aid prosecutors in investigating charges and preparing for trial. There is no doubt that the subpoena power may be used after charges are filed. See Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). This does not mean that the subpoena power cannot be abused. For example, in Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark.App.1980), it could not be used to allow state policemen to coerce witnesses to appear for interrogation. Neither can witnesses be compelled by the use of the prosecutor's subpoena to appear in a county other than where the alleged offense occurred. State v. Stell, 254 Ark. 656, 495 S.W.2d 846 (1973). Inadmissible testimony cannot be obtained by subpoena power. Taylor v. State, supra. A witness subpoenaed has the right to have an attorney present during questioning. Gill v. State, 242 Ark. 797, 416 S.W.2d 269 (1967). A prosecuting attorney cannot use the power to stage a pretrial show of evidence with all the witnesses present. Cook v. State, supra.
All of these cases, however, recognize the right to use the prosecutor's subpoena to prepare criminal cases. Indeed, the emergency clause of Act 160 of 1937 specifically provides that. See also J. Hall, The Prosecutor's Subpoena Power, 33 Ark.L.Rev. 122 (1979). We do not hesitate to hold that, in the absence of an abuse of the power, a prosecutor's subpoena may be used to prepare for trial after charges have been filed. We find no abuse in this case.
The appellant raises a due process argument concerning the subpoena power, but it was not raised below, and we do not address it. See Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).
The other issue concerns Unif.R.Evid. 801(d)(1)(ii), which states:
(d) Statements Which are Not Hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, ....
The trial court allowed the state to call a police officer to testify...
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Echols v. State
...822. The prosecutor may use the subpoena power to investigate and prepare for trial as long as the power is not abused. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). However, we will reverse a case in which a prosecutor abuses the subpoena power. Foster v. State, 285 Ark. 363, 687 S.W......
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Anderson v. State
...822. The prosecutor may use the subpoena power to investigate and prepare for trial as long as the power is not abused. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). However, we will reverse a case in which a prosecutor abuses the subpoena power. Foster v. State, 285 Ark. 363, 687 S.W......
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Terrell v. State, CA
...recent fabrication or improper influence, as there was in this case, and we hold that the trial court ruled correctly. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). The appellant's last argument concerns expert testimony given by Officer Jerry Snowden, who also investigated the rape. ......