Weaver v. State, CA

• Decision Date: 04 February 1981
• Docket Number: No. CA,CA
• Citation: Weaver v. State, 612 S.W.2d 324, 271 Ark. 853 (Ark. App. 1981)
• Parties: Olen Jerry WEAVER, Appellant, v. STATE of Arkansas, Appellee. CR 80-73.
• Court: Arkansas Court of Appeals

Page 324

612 S.W.2d 324

271 Ark. 853

Olen Jerry WEAVER, Appellant, v.STATE of Arkansas, Appellee.

No. CA CR 80-73.

Court of Appeals of Arkansas.

Feb. 4, 1981.

Rehearing Denied March 11, 1981.

Robert S. Blatt, Fort Smith, for appellant.

Steve Clark, Atty. Gen., by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Judge.

The appellant, Olen Weaver, was convicted of first degree sexual abuse and the jury imposed a penalty of four years in the Arkansas Department of Corrections and a $2,500 fine.Weaver raises three points for reversal.

First, it is argued by Weaver that the trial court erred in overruling his motion for a mistrial when, during voir dire examination of a juror, the prosecutor stated:

This case involves, basically it boils down to the testimony of a little girl who was eight years old at the time of the offense, and of course, this adult who is sitting here is the Defendant.The fact that the girl, this little girl

After the trial court overruled the motion for mistrial, the court gave a cautionary instruction to the jury to the effect that the prosecuting attorney would rephrase the last question, and that they should disregard the content of the last question.Weaver contends the prosecuting attorney's comment violated his right not to testify under the Fifth Amendment to the United States Constitution, and because of the comment, he was compelled to testify.We disagree with this contention.

The law is settled that comment on the failure of a defendant to testify in a criminal case is a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution which is applicable to the States by the Fourteenth Amendment.Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106(1969).It is also clear that seeming violations may be harmless error where the State can show that it did not contribute to the verdict or that there was no reasonable possibility that the comment might have contributed to the verdict.Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).In the Chapman case, the Court held that to determine whether a comment contributed to the verdict, the reviewing court must examine: (1) the strength of the evidence, and (2) the nature and extent of the comment.

In applying these criteria to the case at bar, we conclude that the evidence before the jury was substantial even if we were to limit our review to the testimony of the victim, Donna.Our Supreme Court has held that no corroboration of the victim's testimony is necessary in a case involving an alleged sex offense.Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345(1980).

Donna related to the jury how Weaver took her pants and shorts off, that he put his hand on her vagina and that he rubbed her from side to side.In addition to Donna's testimony, we also examine the testimony given by her mother, who substantiated Donna's version of what Weaver had done soon after the encounter occurred.Moreover, another witness called by the State testified that Weaver was in Donna's house on the day of the crime.

The second criteria required by Chapman is the most important when we review the comment made on voir dire.After examining the statement made by the prosecuting attorney, it is difficult to understand how it prejudiced Weaver or, indeed, caused Weaver to feel he was in any way compelled to testify.To consider the prosecutor's remarks in their proper context, we must review the questions, answers and comments before and after the challenged comment:

(BY THE DEPUTY PROSECUTING ATTORNEY:)

Q.I see from your jury questionaire that you have four children.

A.Right.

Q.How old are they?

A.I have a 19-year old, 16-year old, 10-year old I'm sorry, I forgot the oldest.I have one that is 20.

Q.This case involves, basically its boils down to the testimony of a little girl who was eight years old at the time of the offense, and of course, this adult who is sitting here is the Defendant.The fact that the girl, this little girl

THE COURT: The Deputy Prosecuting Attorney will rephrase the last question and you will disregard the content of the question that he just asked.

A.Yes, sir.

Q.The State intends to call as a witness an eight year old girl who was the victim of this offense.The fact that she is eight years old in and of itself, would that cause you to disbelieve anything that she would have to say; just the sole basis of her age?

A.I don't think so.

Q.Of course, you would have to hear all the evidence and hear all I understand you would have to hear everything she had to say and everything all the other witnesses that might testify would have to say, but just because of her age you would not hold that against her and feel she was not worthy of belief?

A. (Nods head in negative.)

(Emphasis supplied.)

From the colloquy above, one clearly discerns the sole purpose of the prosecuting attorney's remarks was to elicit the juror's expressed intentions on whether the juror would believe an eight year old girl's testimony.There was no reference by the prosecutor to Weaver's testimony or possible testimony.Rather, the prosecutor merely identified Weaver to the juror as the adult Defendant.The prosecutor then immediately proceeded to inquire whether the fact the little girl is eight years old would cause the juror not to believe what she would have to say.If we were to conclude (as Weaver suggests) that the prosecutor's statement was a comment on Weaver's right to remain silent, we would be constrained not only to take the prosecutor's statement out of context, but we also would be forced to give the words used a meaning different than that commonly understood and intended.After a review of the prosecuting attorney's voir dire of all jurors, we are convinced beyond a reasonable doubt that the prosecutor's comment was harmless.

The next argument of Weaver's is that the trial court committed error when it allowed the mother to testify to information that she gained from Donna shortly after the offense occurred.This issue is controlled by our Supreme Court's decision in Burris v. State, 265 Ark. 604, 580 S.W.2d 204(1979).In Burris, the prosecutrix testified Burris forced her into her apartment and raped her.She managed to escape and ran to a...