Wilson v. State

• Decision Date: 27 May 1986
• Docket Number: No. CR,CR
• Citation: 289 Ark. 141,712 S.W.2d 654
• Parties: Glenn Lloyd WILSON, Appellant, v. STATE of Arkansas, Appellee. 85-149.
• Court: Arkansas Supreme Court

Page 654

712 S.W.2d 654

289 Ark. 141

Glenn Lloyd WILSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-149.

Supreme Court of Arkansas.

May 27, 1986.

Gordon L. Cummings, Fayetteville, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

ZIMMERY CRUTCHER, Jr., Special Justice.

Glenn Lloyd Wilson, appellant, was charged with Battery in the First Degree for causing serious physical injury to Lloyd Stewart on or about June 24, 1984, by means of a deadly weapon or under circumstances manifesting extreme indifference to human life, in violation of Ark.Stat.Ann. § 41-1601.

The case came on for trial on February 25, 1985, before a jury duly impaneled, and after opening statements, the State called the prosecuting witness as its first witness. On cross-examination, appellant's attorney asked about a $1,000,000 civil suit which the prosecuting witness had filed against appellant arising from the alleged battery. The attorney implied by one of his questions that, had appellant paid the prosecuting witness $18,000, the criminal charges would have been dismissed. Before this question was answered, the prosecuting attorney objected and asked for a mistrial. A mistrial was declared over appellant's objection and the jury was discharged.

The trial court set the case for retrial on the following morning, February 26, 1985, and ordered a new jury called to which the appellant objected on the basis of double jeopardy.

Appellant filed a Notice of Appeal alleging for reversal that the trial court erred in granting a mistrial and in denying appellant's motion to dismiss on the ground of double jeopardy.

We agree with the appellant that the trial court erred in granting a mistrial. The trial judge has considerable discretion in determining the scope of cross-examination. Rule 403 of the Uniform Rules of Evidence states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Also, Rule 408 of the Uniform Rules of Evidence states:

Evidence of (1) furnishing, offering or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

However, this court has consistently taken a broad view of the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). Cross-examination can serve as a means to test the truth of the witness's direct testimony and the witness's credibility. A broad view of cross-examination is especially important where it might reveal bias on the part of a key witness. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

Here, if the cross-examination had been allowed, the jury would have been informed that the prosecuting witness may have been biased due to a financial interest. On the other hand, the jury may have thought that the civil complaint and damages sought were well founded and that the evidence supported the prosecuting witness's testimony. Boreck v. State, 277 Ark. 72, 639 S.W.2d 352 (1982).

The sequence of questions on cross-examination of the prosecutor's chief witness by appellant was as follows:

MR. CUMMINGS: Did you get a lawyer and sue Mr. Wilson?

MR. STEWART: Yes.

MR. CUMMINGS: Have you gone over the facts and your testimony with your lawyer?

OBJECTION (PROSECUTING ATTORNEY): Now, Judge, I am going to object again. I don't think that has any relevance, not that civil suit, to this criminal action.

THE COURT: Not what he has gone over with an attorney not a party to this action. That would not be admissible.

MR. CUMMINGS: You have a definite financial interest in the outcome of this case, don't you, Mr. Stewart?

MR. STEWART: Well, not financial, I want justice done.

MR. CUMMINGS: Uh huh. As a matter of fact, if Mr. Wilson had had $18,000.00 to pay you, we wouldn't be here today, would we?

This court has always held that pecuniary interest, personal affection or hostility, a quarrel or prejudice may always be shown to discredit a witness. Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918).

Therefore, the trial court was in error in granting a mistrial.

The appellant's second point of contention is that the trial court erred in overruling his motion to dismiss the charges on the ground of double jeopardy.

Article 2, Section 8 of the Arkansas Constitution says, "... and no person, for the same offense, shall be twice put in jeopardy of life or liberty."

When the jury is finally sworn to try the case, jeopardy has attached to the accused and when, without the consent of the defendant, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except in cases of "overruling necessity" Jones v. Ark., 230 Ark. 18, 320 S.W.2d 645 (1959). We have found overruling necessity in cases where the defense counsel was intoxicated or a juror was ill. See Franklin and Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971) and Atkins v. State, 16 Ark. 568 (1855).

We find no such overruling necessity here.

Therefore, since a mistrial was improperly granted and jeopardy has attached, the appellant cannot be retried.

Reversed and dismissed.

PURTLE, J., not participating.

NEWBERN, J., concurs.

HOLT, C.J., and HAYS, J., dissent.

NEWBERN, Justice, concurring.

The majority opinion fully states my view in this case. I feel compelled, however, to respond briefly to the dissenting opinion. Its fallacy is demonstrated by these words taken from the second paragraph:

Thus, on the basis of a question Wilson's counsel should not have asked the State of Arkansas is deprived of the opportunity to try an individual for a serious breach of the criminal laws.

It was not the question asked by the defendant's lawyer that deprived the state of the opportunity. Rather, it was the overreaction of the court to that question. As the majority opinion points out, our cases require that an accused not be subjected to double jeopardy unless the mistrial occurred on the basis of an overruling necessity.

The dissenting opinion goes to some length to argue that the question asked by the defense counsel was improper. Even if the cases cited are somewhat supportive of the contention that the question was improper because it was merely cumulative or, on balance, more prejudicial than probative, the point is that the court was hardly confronted with a situation which could not have been handled by a means other than a mistrial.

HAYS, Justice, dissenting.

Glenn Lloyd Wilson was charged with first degree battery in the stabbing of Lloyd Stewart. Stewart had filed a civil suit against Wilson seeking damages of $1,000,000, which was pending while the criminal case was being tried. When counsel for the defense asked Stewart on cross-examination whether, in effect, Stewart would have dropped the criminal charges if Wilson had paid him $18,000, the prosecution moved for a mistrial and the trial court subsequently granted the motion.

On these proceedings the majority concludes the appellant cannot now be tried at all because of double jeopardy. Thus, on the basis of a question Wilson's counsel should not have asked the State of Arkansas is deprived of the opportunity to try an individual for a serious breach of the criminal laws. I respectfully dissent.

I don't question the defendant's right to bring out the fact that the prosecuting witness is also suing the defendant in a civil case. But that was amply done here. Defense counsel in voir dire, opening statement and questioning had told the jury that Stewart was suing Wilson for a million dollars, providing all the basis necessary to argue bias. When counsel then implied that Stewart had not only offered to settle for $18,000 but that the criminal charges would also be dropped in the process, I believe he went too far and the trial court was well within its prerogative in ruling the question improper and, if it deemed the fairness of the trial sufficiently impaired, to grant a mistrial.

The majority declares that to deny the defendant that question is reversible error. I believe it was within the trial court's discretion by any of several rules of procedure and evidence and the fact the defense tacitly agreed is found in the record--after the prosecution moved for a mistrial, defense counsel asked the court to admonish the jury to disregard the question. This was cumulative evidence, which is properly excludable. Rule 403, Unif.R.Evid., Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979). Moreover, even relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, delay, waste of time, confusion of the issues or having a tendency to mislead the jury. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981).

In holding the evidence admissible under Unif.R.Evid.Rule 408 to show bias or prejudice, the majority overlooks the express intent of Rule 403 to exclude evidence otherwise admissible where its probative value is overcome by its prejudicial effect.

The question, I believe, has obvious prejudicial overtones, implying that the defendant is being prosecuted...