Turner v. State

Carl Stanley TURNER v. STATE of Arkansas

CR 96-93                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 1, 1996


1.   Evidence -- prior convictions -- trial court's discretion --
     admissibility decided on case-by-case basis. -- The State has
     a right to impeach the credibility of a witness with prior
     convictions under A.R.E. Rule 609; but the trial court has
     considerable discretion in determining whether the probative
     value of prior convictions outweighs their prejudicial effect,
     and that decision will not be reversed absent an abuse of
     discretion; the admissibility of the prior convictions must be
     decided on a case-by-case basis.

2.   Evidence -- prior convictions -- impeachment. -- Where the
     defendant chooses to testify, prior convictions may be used
     for impeachment even where those convictions are similar to
     the charge or charges before the trial court.

3.   Evidence -- prior convictions were extremely probative --
     trial court did not abuse discretion. -- Where the proof at
     trial of burglary and attempted rape came from the testimony
     of the victim and her mother; where there was no physical
     evidence introduced to link appellant to the crime; and where
     appellant denied his participation in the crime altogether,
     appellant's credibility was a central issue in the case;
     viewed in that light, his prior convictions were extremely
     probative; the supreme court held that the trial court did not
     abuse its discretion by allowing impeachment for the prior
     crimes of burglary and attempted sexual abuse.

4.   Evidence -- earlier case overruled for purposes of A.R.E. Rule
     609. -- The supreme court overruled Jones v. State, 274 Ark.
     379, 625 S.W.2d 471 (1981), with respect to its A.R.E. Rule
     609 impeachment exception; that decision had already been
     overruled for purposes of A.R.E. Rule 404(b), where the issue
     was the admissibility of prior convictions by the State to
     prove motive, intent, lack of mistake, and so forth; pointing
     to the inconsistency in permitting the State to introduce
     convictions for the rape of a child as probative evidence in
     its case-in-chief under the aegis of Rule 404(b) but
     disallowing the use of these crimes for credibility purposes
     under Rule 609, the supreme court noted that it could perceive
     no justification for this dichotomy in treatment and could
     appreciate the probative impact of these prior convictions on
     the credibility of the defendant.

5.   Judges -- recusal -- presumption of impartiality. -- Although
     a judge is required to recuse from cases in which his
     impartiality might reasonably be questioned, there is a
     presumption of impartiality, and the party seeking
     disqualification bears the burden of proving otherwise. 

6.   Judges -- recusal -- within trial court's discretion -- proof
     of abuse of discretion. -- The decision to recuse is within
     the trial court's discretion, and it will not be reversed
     absent abuse; an abuse of discretion can be proved by a
     showing of bias or prejudice on the part of the trial court.

7.   Judges -- recusal -- trial judge did not abuse discretion in
     not recusing. -- A trial judge need not recuse simply because
     that judge had previously prosecuted the defendant for a
     separate crime that was to be used for sentence-enhancement
     purposes; where there was no showing by appellant that he was
     treated unfairly at trial, and, in fact, appellant's counsel
     admitted in his reply brief that appellant was treated fairly
     at trial; and where considerable time has passed since the
     trial judge had prosecuted appellant for other offenses, the
     supreme court perceived no basis for holding that the trial
     judge abused his discretion in not recusing under these facts.

8.   Discovery -- objections to violations must be made at first
     opportunity -- fact that victim could identify appellant was
     disclosed. -- Objections to discovery violations must be made
     at first opportunity in order to be preserved; it was also
     immaterial that a police officer omitted the victim's visual
     identification of appellant from his report while including
     her voice identification; the fact that she could positively
     identify appellant was the critical point, and that fact was
     disclosed.

9.   Motions -- post-trial hearing -- trial court did not err in
     refusing to grant. -- The supreme court held that there was no
     error committed by the trial court in its refusal to grant a
     post-trial hearing on alleged discovery violations, because
     the hearing would have been superfluous; although A.R.Cr.P.
     Rule 36.22 states that a hearing is required when it is
     requested, the rule provides no sanction for when a hearing is
     not afforded a party; a new trial is not contemplated under
     the terms of the rule for failure to hold a hearing.

10.  Trial -- mistrial -- drastic remedy -- within trial court's
     discretion. -- The declaration of a mistrial is a drastic
     remedy and is proper only when the error is beyond repair and
     cannot be corrected by any curative relief; the granting of a
     mistrial is within the sound discretion of the trial court,
     and the exercise of that discretion will not be disturbed on
     appeal absent a showing of abuse. 

11.  Trial -- mistrial -- motion was not timely -- no prejudice to
     appellant -- mistrial not warranted. -- Where appellant's
     mistrial motion was not timely; and where, appellant's counsel
     having cross-examined both the victim and the police officer
     on the victim's identification of appellant, the supreme court
     discerned no prejudice to appellant, who unquestionably knew
     that the victim had recognized him and would testify to that
     fact, a mistrial was not warranted.


     Appeal from White Circuit Court; Robert Edwards, Judge;
affirmed.
     Jim Petty, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.Associate Justice Robert L. Brown
July 1, 1996   *ADVREP*SC7*






CARL STANLEY TURNER,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 96-93




APPEAL FROM THE WHITE COUNTY
CIRCUIT COURT,
NO. CR 95-276,
HON. ROBERT EDWARDS, JUDGE,




AFFIRMED.






     Appellant Carl Stanley Turner was convicted of burglary and
attempted rape.  He was sentenced as a habitual offender to terms
of 30 years and 50 years, to be served concurrently.  Fines of
$10,000 for each charge were also assessed.  He appeals on four
grounds, none of which has merit.  We affirm the judgment.
     The facts surrounding the convictions are garnered from the
jury trial.  On Friday night, May 12, 1995, Alexandra Williams, a
fourteen-year-old, was home alone with her mother, Deena Ann
Darden, in Searcy.  She testified at trial that she stayed up late
watching television and then went to bed in her room.  Early
Saturday morning, she awoke and felt someone brushing against her. 
She first thought it was her boyfriend who was coming over at 10:00
that morning but then realized it was not.  She turned and looked
into the person's face and recognized Carl Turner, whom she had
known for about two years.  In fact, he was her boyfriend's uncle. 
When she first saw Turner, Alexandra noted that he was wearing
boxer shorts and a jacket with a hood over his head.  She also
noticed that he smelled of alcoholic beverages.  Alexandra
testified that she looked at her clock and saw that it was six
o'clock in the morning.
     Alexandra then related that Turner put a knife to her throat
and told her to be quiet.  She was crying and she pleaded with
Turner, but he threatened to cut her throat if she was not quiet. 
She testified that Turner told her to pull down her underwear so
that he could have sex with her.  After she said "no," she stated
that he pulled the knife away from her and started to get on top of
her.  As soon as the knife was far enough away from her throat, she
jumped up and began screaming for her mother.  Turner's reaction
was to get up and walk out.  Alexandra rushed into the hallway to
tell her mother what had happened.  Turner was still in the house
and was fumbling with the door knob, trying to get out.
     Deena Darden testified that after she was awakened by her
daughter's screams, she ran to her daughter's door, where Alexandra
met her.  Darden turned and saw a man trying to unlock the back
door to get out but that he was not moving in a hurried fashion. 
Though he tried to hide his face, she ultimately recognized him as
Carl Turner.  Alexandra then told her, "Carl tried to rape me." 
Darden ran to get her gun from her bedroom, and when she returned
Turner was attempting to leave through her front door.  He left,
and Darden called 911.  Police officers from the Searcy Police
Department arrived a few minutes later.
     The 911 tape was played for the jury.  On cross-examination,
Darden admitted that she had previously told Searcy police officers
that the man she saw in her house was Carl Turner.  She further
testified that she told the 911 operator that "Polli Foo" (Turner's
street name) had come through her window, though that name could
not be heard on the 911 tape.
     The police report by Searcy Police Officer Bob O'Brien stated
that Alexandra identified Turner by his voice but not that she
identified him visually.  It also stated that Alexandra had known
Turner a long time.  When Alexandra testified at trial that she
recognized Turner's face, Turner did not object to this testimony
at that time.  Rather, he waited until after the State had rested
and his motion for directed verdict had been denied to raise the
issue.  He then moved for a mistrial based on the State's failure
to inform him that Alexandra had recognized Turner's face.  That
motion was denied.
     Turner's defense was a partial alibi presented by several
friends and his brother for his whereabouts during early Saturday
morning.  Turner himself took the stand and denied that he was the
culprit.  Before his cross-examination by the State, a hearing was
held to address whether evidence of prior convictions for attempted
sexual abuse in the first degree and burglary could be used against
him for impeachment purposes under Arkansas Rule of Evidence 609. 
Counsel for Turner argued that the burglary and criminal attempt to
commit sexual abuse were too prejudicial under Rule 609 because the
burglary conviction mirrored the current charge before the jury,
and the attempted sexual abuse conviction was unusable as a crime
of a sexual nature.  The trial court ruled that the prejudicial
effect of the convictions was not enough to outweigh the probative
effect of impeaching Turner through the use of those convictions. 
The court ordered the prosecuting attorney not to go into the
substance of those convictions and agreed to give a cautionary
instruction once the prior convictions came into evidence.
     On cross-examination by the State, Turner admitted that he had
prior convictions for burglary and felony attempt to commit sexual
abuse in the first degree, but he argued that in those cases the
trial court had misled him.  Immediately following that admission,
the court instructed the jury to use this evidence only for the
purpose of judging Turner's credibility and not as evidence to
determine his guilt.
     Following the jury trial, the verdicts of guilty, and the
sentences, Turner moved for a new trial on grounds that "he was
prejudiced by evidence which was submitted against him which had
not been furnished to him before trial despite his having filed [a
motion for discovery]."  He specifically complained that Officer
O'Brien's report showed only that Alexandra could identify his
voice.  It said nothing about the fact that she visually identified
him.  Turner expressly requested a hearing on the matter.  The
trial court denied the motion for new trial without a hearing and
concluded that the State had not violated the applicable discovery
rule, Ark. R. Crim. P. 17.1, because the rule does not require that
a defendant be informed of all possible testimony a witness might
give.

                           I. Rule 609
     Turner first advances the argument that the trial court abused
its discretion by allowing impeachment for the prior crimes of
burglary and attempted sexual abuse.  Rule 609 of the Arkansas
Rules of Evidence permits the admission of certain convictions to
attack the credibility of the witness.  For those convictions to be
available to impeach credibility, "the probative value of admitting
this evidence [must outweigh] its prejudicial effect to a party or
a witness...."  Ark. R. Evid. 609 (a).
     The State has a right to impeach the credibility of a witness
with prior convictions under Rule 609.  Robinson v. State, 295 Ark.
693, 751 S.W.2d 335 (1988).  But the trial court has considerable
discretion in determining whether the probative value of prior
convictions outweighs their prejudicial effect, and that decision
will not be reversed absent an abuse of discretion.  Thomas v.
State, 315 Ark. 518, 868 S.W.2d 85 (1994); Donald v. State, 310
Ark. 197, 833 S.W.2d 770 (1992); Griffin v. State, 307 Ark. 537,
823 S.W.2d 446 (1992).  The admissibility of the prior convictions
must be decided on a case-by-case basis.  Thomas v. State, supra;
Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988).  When the
defendant chooses to testify, this court has consistently permitted
prior convictions to be used for impeachment even where those
convictions are similar to the charge or charges before the trial
court.  See, e.g., Donald v. State, supra (burglary conviction used
for aggravated robbery and burglary trial); Griffin v. State, supra
(kidnapping, theft, and burglary convictions used in burglary and
rape trial); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, cert.
denied 464 U.S. 865 (1983) (kidnapping conviction used to impeach
in kidnapping trial).
     Turner argues that his conviction must be reversed under Jones
v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), overruled on other
grounds, George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991).  In
Jones, we reversed Jones's conviction for sexual abuse in the first
degree perpetrated against a nine-year-old boy.  The allegations
were that Jones threw the boy to the ground and forcibly attempted
to have anal intercourse with him.  Jones did not take the stand
but had he done so, the trial court made it clear that it would
have allowed the State to impeach Jones's credibility with an
earlier rape conviction, also involving a young boy.  This court
reversed the trial court's decision.  In doing so, we recognized
that "sexual abuse of a child is a particularly shameful and
outrageous crime," and we held that the probative value of
permitting impeachment with the prior rape conviction of a young
boy had scant probative value as compared to a great potential for
prejudice.  We concluded that this reference to a prior conviction
for the same crime would all but convict the defendant.  However,
in George v. State, supra, we overruled the Jones decision as it
pertained to prior convictions used as evidence under Arkansas Rule
of Evidence 404(b).
     In later cases, this court has generally distinguished the
Jones case on the basis that in Jones the crime charged and the
prior conviction to be used for impeachment showed a unique
perversion that would have unduly tainted the jury.  Included in
the analysis has been the fact that other, less prejudicial
convictions were available for impeachment which did not qualify as
crimes of unique perversion.  See, e.g., Schalski v. State, 322
Ark. 63, 907 S.W.2d 693 (1995) (false imprisonment conviction
permissible in rape trial); Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (sexual abuse conviction allowed in trial for
cocaine possession with intent to sell and felon in possession of
a firearm); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984)
(prior convictions for burglary, attempted rape, kidnapping,
assault and battery, robbery and larceny could be used in trial for
battery and robbery).
     In the instant case, the proof at trial came from the
testimony of Alexandra and her mother.  There was no physical
evidence introduced to link Turner to the crime, and Turner denied
his participation in the crime altogether.  Thus, his credibility
was a central issue in the case.  Viewed in that light, his prior
convictions were extremely probative.  We hold that the trial court
did not abuse its discretion in ruling as it did on this point.
     We further question the continued viability of the Jones
exception to Rule 609 impeachment.  We have overruled that
decision, as already noted in this opinion, for purposes of
Arkansas Rule of Evidence 404(b), where the issue was the
admissibility of prior convictions by the State to prove motive,
intent, lack of mistake, and so forth.  To permit the State to
introduce convictions for the rape of a child as probative evidence
in its case-in-chief under the aegis of Rule 404(b), but to
disallow the usage of these crimes for credibility purposes under
Rule 609 seems largely inconsistent.  We can perceive no
justification for this dichotomy in treatment, and we can certainly
appreciate the probative impact of these prior convictions on the
credibility of the defendant.  We overrule Jones v. State, 274 Ark.
379, 625 S.W.2d 471 (1981).

                           II. Recusal
     We turn next to the trial court's decision  not to recuse in
this case, which Turner claims was error.  We note at the outset
that a judge is required to recuse from cases in which his
impartiality might reasonably be questioned.  Ark. Code of Judicial
Conduct, Canon 3E(1).  However, there is a presumption of
impartiality, and the party seeking disqualification bears the
burden of proving otherwise.  Gentry v. State, 47 Ark. App. 117,
886 S.W.2d 885 (1994).  The decision to recuse is within the trial
court's discretion, and it will not be reversed absent abuse.  Reel
v. State, 318 Ark. 565, 886 S.W.2d 615 (1994); Sheridan v. State,
313 Ark. 23, 852 S.W.2d 772 (1993).  An abuse of discretion can be
proved by a showing of bias or prejudice on the part of the trial
court.  See Reel v. State, supra.
     The facts argued to show partiality were that (1) the trial
court, Judge Robert Edwards, when serving as prosecuting attorney,
had prosecuted Turner in the 1970's for a crime against another
judge's wife; and (2) Judge Edwards again prosecuted Turner in 1981
for theft and in 1982 for burglary.  Turner further claims that
Judge Edwards later sat on the State Board of Pardons and Paroles
for the burglary crime and that he (Turner) has filed "numerous
lawsuits" against the county.  At the pretrial hearing on this
issue, Turner admitted, however, that even though the "circuit
court" had been named in his lawsuits, Judge Edwards had not been
personally named, and there was no proof presented to show that
such suits had actually been filed.  Furthermore, Judge Edwards
stated on the record that he did not participate in parole board
decisions where he had been the prosecutor for the prison inmate to
be reviewed.  The judge also observed that more than ten years had
passed since the crimes prosecuted.
     We initially observe on this point that there was no showing
by Turner that he was treated unfairly in the trial of this matter. 
In fact, in Turner's reply brief his counsel admitted that Turner
was treated fairly at trial.  In addition to that fact, in Cooper
v. State, 317 Ark. 485, 879 S.W.2d 405 (1994), we held that a trial
judge need not recuse simply because that judge had previously
prosecuted the defendant for a separate crime which was to be used
for sentence enhancement purposes.  We also agree with the judge
that considerable time has passed since those earlier prosecutions. 
We perceive no basis for holding that the trial judge abused his
discretion in not recusing under these facts.

                    III. Discovery Violations
     Following entry of judgment, Turner moved for a new trial
pursuant to Ark. R. Crim. P. 36.22, and alleged discovery
violations.  Rule 36.22 states that if a hearing is requested or
found to be necessary, a hearing date shall be designated.  Here,
a hearing was requested but the trial judge made his ruling in the
absence of a hearing.  Because of this, Turner argues that he was
denied the ability to examine Officer O'Brien on why Alexandra's
visual identification of Turner was omitted from his police report.
     The State's response is that a hearing was unnecessary, and we
agree.  There is, first, the fact that Turner did not object at the
first opportunity to Alexandra's testimony that she recognized
Turner's face during the attempted rape.  We have held that
objections to discovery violations must be made at first
opportunity in order to be preserved.  Clark v. State, 323 Ark.
211, 913 S.W.2d 297 (1996).  But it was also immaterial that
Officer O'Brien omitted her visual identification of Turner from
the report while including her voice identification.  The fact that
she could positively identify Turner was the critical point, and
that fact was disclosed.
     Turner argues that testimony taken at a post-trial hearing was
needed to show improper motive on the part of the State in its
failure to disclose, but there is no evidence to show noncompliance
with Ark. R. Crim. P. 17.1.  Simply put, there was no error
committed by the trial court in its refusal to grant a hearing,
because the hearing would have been superfluous.  See Allred v.
State, 310 Ark. 476, 837 S.W.2d 469 (1992).  Finally, although Rule
36.22 states that a hearing is required when it is requested, the
rule provides no sanction for when a hearing is not afforded a
party.  Certainly, a new trial is not contemplated under the terms
of the rule for failure to hold a hearing.
     As a corollary point, Turner argues that a mistrial for the
discovery violation should have been declared.  Declaration of a
mistrial, of course, is a drastic remedy and is proper only when
the error is beyond repair and cannot be corrected by any curative
relief.  Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995).  In
addition, the granting of a mistrial is within the sound discretion
of the trial court, and the exercise of that discretion will not be
disturbed on appeal absent a showing of abuse.  Bradley v. State,
320 Ark. 100, 896 S.W.2d 425 (1995).  In this case, the mistrial
motion was not timely, as already noted.  See Clark v. State,
supra.  Any objection should have been made during the testimony of
Alexandra.  Moreover, Turner's counsel cross-examined both
Alexandra and Officer O'Brien on her identification of Turner. 
Again, we discern no prejudice to Turner.  He unquestionably knew
that Alexandra had recognized him and would testify to that fact. 
A mistrial was clearly not warranted.
     Affirmed.
     Dudley, J., not participating.