Kidd v. State

Larry Joe KIDD v. STATE of Arkansas

CR 97-586                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 6, 1997


1.   Appeal & error -- argument not made at trial -- barred on
     appeal. -- Where appellant made no argument to the trial court
     that his comments in two statements in contention in this
     appeal constituted proof of prior bad acts under Ark. R. Evid.
     404(b), the argument was procedurally barred on appeal.

2.   Mistrial -- motion not made at first opportunity -- motion for
     mistrial must be made at time objectionable material brought
     to jury's attention. -- Appellant's motion for declaration of
     a mistrial the day after the detective's direct examination
     was not timely and therefore ran afoul of the rule requiring
     that objections or motions be made at the time the
     objectionable matter is brought to the jury's attention; this
     failure to object at the first opportunity disposed of the
     allegedly prejudicial comments made in appellant's earlier
     statement and the rape allegation on the Indian reservation
     contained in his later statement.

3.   Evidence -- evidence of guilt overwhelming -- slight errors in
     introduction of evidence do not constitute reversible error. -
     - When the evidence of guilt is overwhelming, slight errors in
     the introduction of evidence do not constitute reversible
     error.
4.   Evidence -- evidence of appellant's guilt overwhelming -- any
     slight error in introduction of earlier comments insufficient
     to constitute reversible error. -- Even assuming that
     appellant's comments about his having thoughts of rape and
     killing and of following people home from work, which were
     also contained in his later statement, were not relevant and
     were unduly prejudicial under Ark. R. Evid. 403, appellant
     could not prevail because the evidence of appellant's guilt
     was significant enough to render any error harmless; there was
     no reversible error on this point.

5.   Evidence -- marital privilege -- Ark. R. Evid. 504 discussed.
     -- Rule 504(b) of the Arkansas Rules of Evidence provides that
     an accused in a criminal proceeding has a privilege to prevent
     his spouse from testifying as to any confidential
     communication between the accused and the spouse; Rule 504 is
     a rule of evidence providing a testimonial privilege to an
     accused in a criminal proceeding.

6.   Evidence -- Ark. R. Evid. 504 inapplicable -- protections of
     Rule did not attach. -- Although appellant's wife provided the
     detectives with a significant amount of evidence, the
     protections of Rule 504 did not attach because the criminal
     proceedings had not begun when she reported her husband's
     statements to police officers and because she did not testify
     at trial regarding the confidential communication; Rule
     504(b), on its face, did not apply.


     Appeal from White Circuit Court; Robert Edwards, Judge;
affirmed.
     Madison P. Aydelott, III, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Robert L. Brown, Justice.

     Appellant Larry Joe Kidd was convicted of raping a fourteen-
year-old girl and sentenced to 40 years in prison.  He appeals on
two grounds: (1) trial court error in allowing into evidence Kidd's
comments which were unduly prejudicial and concerned other bad
acts; and (2) trial court error in permitting privileged
confidential communications between Kidd and his wife into
evidence.  The two points are meritless, and we affirm.
     The facts in this case are assembled from trial testimony. 
The fourteen-year-old victim testified that the events occurred in
her mobile home in Searcy.  On April 28, 1996, she went to bed at
about 11:00 p.m.  During the night, she heard a person enter her
room but assumed it was her mother.  A man wearing a ski mask put
a pillow over her face and told her keep quiet.  She fought and
scratched at the man's face underneath the mask.  The man began to
choke her and told her that if she fought any more, he would cut
her ear off.  He bound her wrists and covered her mouth with duct
tape.  After doing that, he removed the bottoms of her pajamas and
underwear and had sexual intercourse with her against her will. 
She testified that during the rape, the man raised the mask over
his eyes, which allowed her to see that he had a fairly close-cut
beard.  She also testified that the man wore surgical gloves and
removed one of them so he could scrape underneath her fingernails
with his fingernail.  He said at the time: "I got to get this out
from under you so they don't know who I am."  The victim said that
she struggled with the man throughout the rape. 
     Once the man left, the victim removed the duct tape from her
mouth and called 911 for police assistance though her hands were
still bound.  The call was forwarded to Deputy Sheriff Randy Still
at 3:43 a.m. on the morning of April 29, 1996.  The victim waited
in the living room of her mobile home until Deputy Still arrived. 
According to Deputy Still, the victim's hands were bound in front,
and she was bleeding from the vaginal area.  He first checked on
the condition of the victim's mother, who had not been harmed.  The
victim later told the deputy sheriff that her attacker was a heavy-
set man with a close-cropped beard who had bad body odor.  She
added that he was wearing work boots, a pair of dark pants, and a
black ski mask.
     The victim was taken to the White County Medical Center for a
sexual-assault examination.  Dr. Christopher Melton, who performed
the examination, testified that there were signs of trauma to the
victim's neck and that the presence and location of blood were
consistent with the victim's hymen being torn.  In his opinion, she
had been subjected to a sexual assault.
     After the victim returned from the hospital but on the same
day, Kidd, who was a neighbor, came to the front door of the mobile
home and told the mother of the victim that he was "all doped up"
and that he needed medical attention because he had just fallen
through a window.  Although she could not see Kidd standing outside
of her mobile home, the victim testified that she recognized his
voice as that of the man who had raped her.
     At the crime scene, Deputy Still found tool marks on the front
door of the mobile home, indicating that it had been pried open. 
He further found a footprint outside of the victim's window.  Later
that day, Detectives Curtis Goodrich and Bill Lindsey of the White
County Sheriff's Department went to Kidd's home, where they found
him leaving his garage.  He had scratches on his face.  Kidd agreed
to go to the sheriff's department to answer questions, and he did
so, accompanied by his wife, Paula Kidd.  Once there, he waived his
right to counsel and gave a statement.  He also gave the detectives
permission to search his residence and allowed them to take samples
of his hair, blood, and saliva.
     In the first statement Kidd gave on April 29, 1996, he denied
any culpability for the rape.  He told the detectives that he was
taking Prozac and Buzbar for an anxiety condition and was under the
care of a physician.  He stated: "About two years ago, I was having
problems.  I hated women, and I thought about rape."  Upon
searching Kidd's home, the detectives discovered a broken window,
which Kidd said caused the scratches on his face because he slammed
his head through it that morning.  Detective Goodrich testified
that he saw no evidence of blood on the broken glass.  The
detectives later were given dark work pants and work boots by Paula
Kidd.  A black ski mask was subsequently recovered from Kidd's
residence.
     On June 19, 1996, Detective Goodrich and Detective Lindsey
questioned Kidd a second time.  Kidd again denied having raped the
victim and stated that he hardly knew her.  When told by Detective
Goodrich that the victim had said her attacker had a bad problem
with body odor, he admitted that he had such a problem.  Detective
Goodrich then related to the jury: "I asked him while he was
standing by the victim's bed, did he have an erection or did he
have to have foreplay to get an erection, and he stated he couldn't
remember."  When asked by the detective whether he told anybody
about raping the girl, Kidd said that he had told his preacher that
he could have done it.  He also stated that he thought about rape
and killing in the past and that he had followed people home after
work.  He added that he had previously been accused of rape in the
1980s on a North Dakota Indian Reservation.  He stated that he had
had sexual relations with the girl on the reservation but later
found out that she was a prostitute and wanted nothing further to
do with her.  According to Kidd, she accused him of rape as a
result.  He stated that he was arrested and questioned by police
officers but later released.
     Edward Valman, chief forensic serologist at the Arkansas State
Crime Laboratory, testified that he received the victim's rape kit
and found semen, but not sperm, on the vaginal swab.  Kermit
Channell, section chief of the State's DNA Laboratory, stated that
he tested the vaginal swab but found only DNA consistent with the
victim because there were no sperm cells.  He testified that the
finding of semen without the presence of sperm cells was consistent
with the semen's having been deposited by a person who had had a
vasectomy.
     Paula Kidd, Kidd's former wife, testified that Kidd had had a
vasectomy soon after they were married approximately seven years
earlier.  She further testified that during the early morning hours
of April 29, 1996, she was awakened at about 1:30 a.m. by a storm. 
Kidd was in bed at that time.  She said that she woke up again at
3:00 a.m. but noticed that he was not in bed and was nowhere in the
house.  At 5:00 a.m., Kidd had returned to bed, when she received
a telephone call from her sister.  Her sister, who was also a
neighbor, told her about the rape.  Hours later, she noticed that
Kidd's face had several scratches that were not there at 1:30 a.m. 
She also testified that Kidd took a shower that day at 6:00 a.m.,
which was very unusual because he typically did not get out of bed
until 10:00 a.m.  She stated that she found his blue work pants and
work shirt and a wash cloth in the clothes washer, which was
unusual, too, because she normally did the laundry and because he
had plenty of clean clothes to wear to work.

                    I. Prejudicial Statements
     Kidd first contends that the trial court erred in denying his
motion for declaration of a mistrial because certain portions of
his two statements to the detectives were highly prejudicial,
irrelevant, and constituted proof of prior bad acts, all of which
violated Rules 402, 403, and 404(b) of the Arkansas Rules of
Evidence.  Specifically, he refers to the assertion taken from his
April 29, 1996 statement: "About two years ago, I was having
problems.  I hated women and I thought about rape."  In addition,
he contests two references in his June 19, 1996 statement: (1) that
he had thought about rape and killing in the past and followed
people home from work; and (2) that he had been accused of rape on
a North Dakota Indian Reservation during the 1980s.
     The procedural history of Kidd's objections and motions in the
trial court in regard to these comments is necessary to decide this
first point.  Although the abstract of the mistrial motion makes
only a cryptic reference to the fact that Kidd's counsel had
previously made an objection on this point, the record discloses
that immediately prior to trial, Kidd objected to any statements he
made about having thoughts of rape and killing and of following
people home from work.  The basis for defense counsel's objection
was that these comments were more prejudicial than relevant under
Rule 403 of the Arkansas Rules of Evidence.  The trial court
overruled the objection.
     At trial, the trial court took a recess at the end of the
first day of testimony after the conclusion of Detective Goodrich's
direct examination, which included testimony about Kidd's two
statements given on April 29, 1996, and June 19, 1996.  The
following day before cross-examination began, defense counsel moved
for a declaration of a mistrial because the comments by Kidd in the
two statements which are contested in this appeal were admitted
into evidence in violation of Rules 402 and 403 of the Arkansas
Rules of Evidence.  The trial court ruled that the comments were
made by Kidd after a valid waiver of his rights and should not be
deleted from his statements under Rule 402 or Rule 403.     
     We first conclude that Kidd made no argument to the trial
court that his comments in his two statements in contention in this
appeal constituted proof of prior bad acts under Rule 404(b).  That
argument, accordingly, is procedurally barred.  Henderson v. State,
329 Ark. 526, ___ S.W.2d ___ (1997); Evans v. State, 326 Ark. 279,
931 S.W.2d 136 (1996); Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).
     Next, we address whether Kidd's motion for declaration of a
mistrial the following day after Detective Goodrich's direct
examination was timely.  We do not think that it was because the
motion was not made at the first opportunity to do so.  See
Smallwood v. State, 326 Ark. 813, 935 S.W.2d 350 (1996).  See also
Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996); Jones v.
State, 326 Ark. 61, 931 S.W.2d 83 (1996).  Had defense counsel
objected or made the motion for declaration of a mistrial at the
first opportunity during Detective Goodrich's direct examination,
steps might have been taken by the trial court to admonish the jury
or strike the testimony.  We hold that defense counsel simply
failed to move in timely fashion for a remedy and, therefore, ran
afoul of our rule requiring objections or motions to be made at the
time the objectionable matter is brought to the jury's attention. 
See, e.g., Smallwood v. State, supra.  The failure to object at the
first opportunity disposes of the allegedly prejudicial comments
made in Kidd's April 29, 1996 statement and the rape allegation on
the Indian reservation contained in his June 19, 1996 statement.
     This leaves the question of Kidd's comments about his having
thoughts of rape and killing, and following people home from work,
which were also contained in his June 19, 1996 statement and which
formed the basis for his Rule 403 objection just prior to trial. 
Before trial, the trial court overruled his objection.  Because the
objection was in the nature of a motion in limine, we deem the
issue to be preserved for our review.  See Neal v. State, 320 Ark.
489, 898 S.W.2d 440 (1995); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).
     Again, Kidd's abstract only makes a glancing reference to the
fact that this issue had been previously raised to the trial court. 
Nevertheless, we choose to address it.  On the merits Kidd cannot
prevail on this point. Even assuming that these comments were not
relevant and were unduly prejudicial under Rule 403, the evidence
presented of Kidd's guilt at trial, albeit circumstantial, was
overwhelming.  This court has stated in the past that when the
evidence of guilt is overwhelming, slight errors in the
introduction of evidence do not constitute reversible error.  Hicks
v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Abernathy v. State,
325 Ark. 61, 925 S.W.2d 380 (1996); Rockett v. State, 318 Ark. 831,
890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).  
     Here, the evidence of Kidd's guilt is significant enough to
render any error harmless.  There was the victim's physical
description of her attacker as a large man with a close-cropped
beard and with pronounced body odor.  There was the victim's
identification of Kidd's voice.  There were the scratches on Kidd's
face that had not been there at 1:30 a.m., according to his former
wife, but were there later that same day.  There were the work
boots, dark pants, and ski mask which the attacker wore and which
belonged to Kidd.  There was the footprint outside the victim's
window which matched Kidd's work boot.  There was the absence of
sperm in the vaginal swab which corresponded with Kidd's vasectomy. 
And there was Kidd's unusual behavior during the early morning
hours of April 29, 1996, when he showered and washed his clothes.
     We conclude that there was no reversible error on this point.

                 II. Confidential Communications
     During the investigation which led to Kidd's arrest and
subsequent prosecution, his then wife, Paula Kidd, cooperated
extensively with the sheriff's detectives.  All told, she gave five
statements to the detectives that included communications between
her husband and her, such as his revelation that he had been having
dreams about doing "bad things" to women.  Paula Kidd provided the
detectives with a significant amount of evidence, including the
black ski mask and his dark pants and work boots, that tended to
prove her former husband's guilt.  In the words of Detective
Goodrich, the assistance provided by Paula Kidd was "instrumental."
     Prior to trial, Kidd made several motions regarding marital
privilege in connection with Paula Kidd's statements to the
detectives.  The trial court denied the motions.  On appeal, Kidd's
argument does not focus on Paula Kidd's testimony at trial because
she did not testify as to any confidential communications with him. 
Rather, his argument is premised on the fact that Detective
Goodrich succeeded in having him admit to having had thoughts of
rape and killing because Paula Kidd told Detective Goodrich that he
had been having these disturbing dreams.  Otherwise, the detective
would not have known to broach this subject to him, according to
Kidd's theory.  In sum, Kidd contends that Detective Goodrich
testified that Kidd told him certain things due to information
gleaned from Paula Kidd when she herself could not have testified
at trial.
     This issue is resolved by Rule 504(b) of the Arkansas Rules of
Evidence, which provides that "[a]n accused in a criminal
proceeding has a privilege to prevent his spouse from testifying as
to any confidential communication between the accused and the
spouse."  As this court stated in Halfacre v. State, 292 Ark. 331,
334, 731 S.W.2d 179, 180 (1987), "Rule 504 is a rule of evidence
providing a testimonial privilege to an accused in a criminal
proceeding."  Id. (emphasis in original).  In Halfacre, which
involved the appellant's conviction for aggravated robbery, we held
that the marital privilege did not render the appellant's arrest
illegal, when his wife contacted police officers and told them that
the appellant had just stated to her that he robbed a local hotel. 
This court noted that the protections of Rule 504 did not attach
because the criminal proceedings had not begun when the wife
reported her husband's statement to police officers and because she
did not testify at trial regarding the confidential communication. 
Id.
     In the instant case, as in Halfacre, Paula Kidd did not
testify at trial about any confidential communications made by
Kidd.  Thus, Rule 504(b), on its face, does not apply.
     Affirmed.